An Extremely Brief Review of Anti-Trafficking Laws in North America

If you think sex work = sex trafficking, you’re doing it wrong.

(Note: The article length takes into account the 160+ citations at the end; it’s not going to take you 48 minutes to get through it.)

Introduction

Sex work and human trafficking have become intertwined in both legal frameworks and social ideology. “Sex work” broadly encompasses the wide range of sexual services and labour that are sold in exchange for consideration. Prostitution is the most widely known and publicized form of sex work, although other types of labour are captured by this definition (e.g. erotic massage, stripping, pornography). Human trafficking is frequently associated with sex trafficking, although labour trafficking exists widely in other industries, such as agriculture and textiles. Their interchangeable use by the state and media is seen as a way to drum up public emotion to garner political support.[1] But the intersection of these definitions and the use of human trafficking as an umbrella term to describe all forms of sexual labour have significant, detrimental effects on human rights; immigration, labour, health, and personal security are the most concerning and most often cited.[2] Appreciating the harm created by this intersection necessitates separating the terms from their political influence.

For the purposes of this article, the term “sex work” is used to include all forms of sexual labour, whereas “prostitution” is used in reference to legal frameworks. Some overlap in the use of language may occur, and the reader is encouraged to be mindful of the context in which discussion occurs. “Sex work” is the preferred definition of sexual labour for several reasons.[3]

It emphasizes sex work as valid work that deserves the same rights and privileges as all other forms of labour. It moves the discussion away from sex workers as victims and places agency and choice back in the hands of workers. The stigma associated with prostitution, greatly perpetrated by the media and lobbyist groups, causes real harm to workers. Sex work also makes the important distinction between sex trafficking, which is an exploitive, abusive practice where victims lack some degree of control over their circumstances.

Trafficking in itself is inconsistently defined when compared across Canada, the United States, and international protocols and covenants. Along with sex trafficking, human trafficking is frequently conflated with irregular migration. Although both may involve coercion, violence, or deception in some way, there are some distinctions.

Human trafficking may not involve any international border crossing (domestic trafficking is frequently cited in the media[4]), while irregular migration is considered to be “movement that takes place outside the regulatory norms of the sending, transit, and receiving country.”[5] Irregular migration may refer to the act of smuggling individuals into a country without following traditional regulatory protocols. It may involve persons who enter a country with false documents or without, who reside in a country in violation of residency permits or entry visas, or who may be employed without appropriate work permits or other documentation[6].

Many irregular migrants may knowingly consent to some forms of their irregular migration into a foreign state, but oppose other circumstances that may befall them once they arrive in that country.[7] For example, irregular migrants may willingly engage in unlawful activities to ensure their arrival in a foreign state (e.g. hiring third parties to procure documents and transport), only to later find themselves in situations where they are subject to some form of trafficking-like activities, such as debt bondage.[8]

In many ways, anti-trafficking laws are actually harmful to those they supposedly protect. The intermingling of border securitization, criminalization, immigration, and sex work shifts the focus away from protecting trafficking victims’ rights, towards a carceral model of deterrence and punishment. State assistance for victims is precarious because irregular migration often encompasses elements of consent and coercion, so many migrants may not meet criteria for aid.

The focus on sex trafficking means exploited workers in other industries are removed from the discussion on detection, prevention and assistance. When human trafficking is equated to sex work, sexual labour becomes quasi-criminalized, if not entirely so, leading to its association with other criminal activities, victim blaming, increased risk of violence, and a lack of trust in the justice system.[9]

Anti-trafficking laws and policies aren’t designed to assist victims of trafficking; instead, they are border securitization and crime control strategies. The emphasis on sex trafficking, its conflation with sex work, and the rescue narrative that surrounds the entire industry has a disproportionately negative impact on irregular migrants, women and girls, while ignoring the needs of exploited workers in other industries.

A critical analysis of Canadian and U.S. anti-trafficking laws in the context of sex work is important given the vast border between the two countries, and the U.S.’ influence on Canadian and international policies on trafficking and prostitution.

Development of prostitution and Anti-Trafficking Laws in Canada and the U.S.

Anti-trafficking laws in Canada and the U.S. have a basis in post-Victorian era puritanism, which extends to contemporary prostitution and trafficking laws despite their inception over a hundred years ago. These enduring notions social morality from a bygone era are recurrent theme in prostitution and trafficking law discourse and have a profound influence on the public’s perception and understanding of these practices. Heavily adopted by prostitution abolitionists, the identities of “victim” and “predator” are crucially important in the anti-trafficking ideology because they create the need for “rescue” from the evils of society.

In actuality, these identities are grounded in racialized and gendered assumptions that further discrimination against marginalized people, in particular irregular migrants and sex workers. Though touted as a way to “end the demand” for sexual services, domestic anti-trafficking and prostitution laws reinforce carceral protectionism that is heavy on criminalization while devoid of any substantial aid or support to victims.[10]

Between the late 1800’s and early 1900’s, prostitution laws were shaped by a number of factors centred around reducing public nuisance and infectious diseases. Prior to the industrial revolution, women and children’s welfare was given little regard; children were viewed as no more than small adults, while women’s value was relegated to men’s property interests where various laws restricted women’s autonomy and mobility. The introduction of the Contagious Diseases Act in Canada and the U.K. placed both disease control and maintaining society’s status quo squarely in the hands of women, in order to protect the military and ensure public health.[11]

As capitalism infiltrated North American society, it began to create social problems — mainly impacting women and children — that the middle and upper class found intolerable. The quasi-sexual and aggressive approach to commerce were seen as a socially destructive force that needed to be righted in order re-strengthen the family as a “pivotal social unit.” Vulnerable groups should be protected, if only insofar as to preserve middle class women’s virtue. As the centre of this unit, women were tasked with maintaining the home and society’s moral compass, and thus needed to be shielded from sexual and social degradation. Prostitution was the answer to this issue, since men could uphold their proprietary interest and keep company of women of status, while continuing to avail of sexual services of women in the lower class.[12]

Despite the modicum of protection for prostitutes proffered by the wealthier upper class (even if to protect their own interests), social reformer values eventually won out. Early prostitution laws embraced a combination of abolition and criminalization in an attempt to eliminate the practice, supported and even carried out by early abolitionists themselves. Prostitutes were considered lower class and affiliated with immigrants, and both groups were regarded as immoral and “dirty” and seen as a threat to state sovereignty.[13] The intersection of morality and women’s increasing social freedoms further supported the public’s denouncement of prostitution. If women bore the responsibility of maintaining a “pure moral atmosphere” of the state, any expression of sexual deviancy would be counter to this. Since it was inconceivable that women would actively seek sexual experiences, any supposed evidence towards such activity — such as travelling alone — was made under coercion; the concept of human trafficking was born.[14]

Puritanical views on sex and sexuality heralded men to be sexually aggressive, with women’s sexual passivity as a corrective force. Deviant behaviours resulted in venereal disease and destroyed families, and only loose women of low moral reputation could be capable of such devastation. Propaganda campaigns portrayed women lured to prostitution out of desperation, their children abandoned or worse, in parallel with expert testimonial lending credibility to the message: no respectable woman would ever become a prostitute and those who enter the trade live a life of destitution affecting generations.[15]

Those advocating for the abolishment of prostitution viewed human trafficking as “white slavery” and believed that women — white, middle to upper class — were now being moved across the country at the behest of “dangerous” predators. The ensuing moral panic promoted the development of several U.S., Canadian and international regulations around prostitution and trafficking. Canada was heavily influenced by U.K. laws formed as the result of conservative campaigns that promoted a carceral response to prostitution-related activities. Rescue, reform, and criminalization were essential in combatting these morally aberrant acts. Brothels were under increasing police scrutiny with frequent raids, and single women were targeted in social purist campaigns that labeled them as potential prostitutes. This latter action ironically led to many women living with boyfriends or other men in an attempt to look “respectable”, only to then be presumed to living with “pimps” or traffickers.[16]

Furthering the myth of “white slavery” was the identification of pimps as foreigners which was especially convenient given the ongoing and international trade of women across Canadian and U.S. borders. Moreover, framing prostitution as “slavery” allowed abolitionists to promulgate the idea that consenting to the work, especially with immigrants, was impossible.[17] The British government thought itself to be the most appropriate body to tackle this issue, holding the First International Congress for the Suppression of White Slave Traffic in 1899 and enacting the 1905 Aliens Act to repatriate foreign prostitutes to the U.K. Britain’s actions heavily influenced U.S. and Western Europe attitudes on prostitution during the First World War. Heightened nationalist sentiments were coupled with increasing concern about racial integrity, religious faith, and fear of immigrants’ undermining traditional Anglo-Saxon values.[18]

Spurred by strong emotional sentiment and mounting anxiety from the citizens ascetic, the U.S. legislated the White Slave Traffic Act, also known as the Mann Act in 1910, which prohibited transportation of women over state lines for “immoral purposes.” By 1920, all red light districts had vanished. In Canada, the Criminal Law Amendment Act was passed in 1912 to increase punitive measures relating to brothels and procurers, though this was less than satisfactory to social reformers who pushed for even more repressive regimes; further amendments in 1913 attempted to denounce prostitution through additional offences relating to living off the avails, harbouring, concealment, and exercising direction or control of women.[19]

Several international agreements were developed alongside early Canadian and U.S. prostitution and trafficking laws. The League of Nations developed three international agreements[20] between 1904 and 1933 touting protection of white women involved in prostitution, while giving an early definition of “trafficking”. These agreements fixated on immigration control and surveillance of women, and supported states sharing information about suspected trafficking incidents. The agreements were unified in 1949 with the United Nations’ Convention on the Suppression of Traffic in Persons and the Exploitation of the Prostitution of Others.[21] Subsequent U.N. agreements between 1979 and 2000 included protections around labour exploitation, gender discrimination, and human rights.

Modern prostitution and anti-trafficking laws have become increasingly intertwined and differ minimally from laws of a century ago. Past and current laws in Canada and the U.S. have framed prostitution as both a criminal and immoral act. Human trafficking was, and still is, tied with border securitization and criminalization. The surveillance and mobility control of women and children still remains a key focal point. And the overall message was — and still is — that prostitution equals sex trafficking equals human trafficking; to control the situation, sovereign nations must pay close attention to borders and punish anyone caught in the act.

Anti-Trafficking Laws in Canada and America

Prostitution laws typically encompass one of three models: criminalization (whether partly or in whole), decriminalization, and regulation. Regulation involves state oversight on some or all aspects of sex work, for example relegating brothels to specific areas of a city.[22] The U.S. has fully criminalized all aspects of prostitution; all sex workers, clients and anyone in between are criminally liable.[23] Canada has adopted a partial criminalization system based on Sweden’s approach.[24] Under this model prostitution can be eliminated by providing prosecutorial immunity to sellers, while buyers, third-parties or others who may benefit economically, face strict penalties.[25] The emphasis on denouncement, deterrence, and “rescue” creates a framework necessary to “end the demand” for prostitution.[26]

Decriminalization is the preferred legal framework to ensure the rights of sex workers and trafficked persons are preserved.[27] This model views sex work as a legitimate form of labour through practices and policies that promote public health and provide safeguards to protect workers from violence. The most widely known example is that of New Zealand, who decriminalized sex work in 2003, and has served as an example of the benefits of using this model.[28]

Whereas decriminalization models recognize the difference between sex work and trafficking, criminalization frameworks inaccurately associate these practices with sex trafficking. Although sex trafficking is a real issue, its association with human trafficking is grossly overestimated. The focus on sex trafficking as the main form of human trafficking has the effect of ignoring those in other industries, such as domestic service, industrial, or agriculture. True victims of trafficking go unassisted or undiscovered.[29]

Overview of the Neo-Abolitionist Framework

The parallel development of prostitution and anti-trafficking laws in North America has long been supported by neo-abolitionists, doctrine touts prostitution as an inherently violent activity synonymous with trafficking.[30] According to this group, prostitution reinforces power imbalances,[31] creates economic incentives to exploit vulnerable persons,[32] and is inherently oppressive and patriarchal by giving men access to women’s bodies in an attempt to control power dynamics via objectification.[33] Consent to any level of sexual commodification is impossible within this framework, so “victims” must be “rescued” to avoid being exploited by a “predator”.[34] The main characters — victim, predator, rescuer — are essential in telling the story of the “national crisis” afflicting vulnerable women and children.[35] Support for this narrative comes from an unlikely trio — radical feminists, the religious right, and political conservatives have joined alliances to defeat a common villain;[36] victims, villains and rescuers of modern abolitionist prostitution myths are not that far removed from those of the late 1800’s and early 1900’s.[37]

Neo-abolitionist discourse is founded on discrimination rooted in racialized and gendered stereotypes[38] and perpetuated through modern media and government anti-trafficking campaigns.[39] Young, white women and girls embody the ideal victims.[40] Victimhood is akin to coercion; a victim never has agency nor control of the decision making process. Yet she is somehow partially culpable for the situation in which she finds herself, a concept that Orchard calls ‘victim discourse creep’.[41]

Here, victims become so because society’s default is to demean and eroticize women and girls, where they become sexual objects in need of control.[42] This is especially so when adolescents and teens begin to display behavior that may be socially deviant and gets labelled as a sign of being trafficked; having boyfriends, lying, substance use, and staying out late are examples of ‘grooming’ that necessitate surveillance and monitoring by family and law enforcement.[43]

When a victim doesn’t fit this narrative — through gender, race, looks, or decision-making, they are often deemed complicit in their condition and are at risk of criminal punishment, may not qualify for aid, or they are ignored altogether. Men, trans persons, older adults, and those working in industries outside sexual labour are less likely to be identified as a victim of trafficking.[44] Those who acknowledge some level of consent are less likely to be believed and more likely to be scrutinized.[45] Agency exerted by unlikely victims also makes it harder for law enforcement to distinguish between “trafficking” and “smuggling for the purposes of economic migration”, so those not quite inscribed by the common perception of a trafficked person will often be deemed an offender.[46] This is particularly salient in irregular migration, which is neither a wholly voluntary nor involuntary process; instead a variety of social and economic factors contribute to a person’s decision to migrate, but for exigent circumstances the decision-making process becomes constrained and the person lacks complete autonomy.[47]

Those who avail of sexual services, too, are gendered, racialized, and stereotyped. Clients all are thought to share similar attitudes, experiences, and behaviours that contribute to their “hostile masculine” views of women engaged in prostitution, leading to their “dehumanizing” treatment.[48] Their pornography habits have a negative impact on their sexuality.[49] They are older, more likely to be non-White, unemployed, and less likely to view extra marital sex as problematic,[50] a direct threat to marriage and the family.[51] A significant portion of human trafficking prosecutions in Canada are of Black men, who, unlike their white counterparts, are frequently publicly identified and highlighted thanks to media sensationalism.[52]

The Influence of the Neo-Abolitionist Framework on Prostitution and Trafficking Laws

Neo-abolitionists have played a considerable role in anti-trafficking discourse worldwide through their heavy influence on North American legislation and international anti-trafficking initiatives. The strong sentiment of victim imagery permeates domestic anti-trafficking at home and abroad, and is an effective call to action that distorts government, non-profit groups and the public’s perception of the lived experiences of sex workers and trafficking victims. The result is an over-policed and over-funded criminal justice system fixated on outcomes that equate success with prosecution, while ignoring the realities of those affected by their policies.

As a key player in the anti-trafficking arena, the U.S. has imposed its domestic policy on foreign governments and international bodies to further its own immigration interests. The UN General Assembly’s Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (Protocol) was adopted in 2000 alongside several treaties addressing labour exploitation and human rights.[53] Early development of the Protocol was led by the Clinton administration in the U.S., whose political and economic influence undoubtedly steered the Protocol’s direction towards organized crime and human trafficking.[54] The 2000 Trafficking Victims Protection Act [TVPA][55], was developed by the Bush administration concurrently with the Protocol. It and its subsequent TVPA Re-enactments and other instruments have expanded law enforcement’s power and discretion in controlling immigration.

The tragic events of 9/11 provided a convenient impetus for the Bush administration to enact increasingly restrictive immigration and border securitization policies. The 2001 Patriot Act permitted an expansive range of activities including enhanced surveillance by the state, information sharing between intergovernmental agencies, increased law enforcement powers, and more severe criminal penalties.[56] In 2002, EBSVERA[57] increased the number of immigration agents and investigations, furthering the U.S.’ powers in surveillance, and detaining suspects, with a focus on anti-money laundering and ensuring alien-issued visas were tamper-proof through biometric identifiers. The Department of Homeland Security (DHS), formed in 2003, oversees immigration and citizenship, border control, and counterterrorism efforts.[58]

The self-appointed title on which the U.S. bestowed itself following the TVPA was accompanied by several regulations that have had a lasting impact on Canadian and international approaches to the issue of human trafficking and prostitution. Various neo-abolitionist groups lent support to the U.S. State Department Office to Monitor and Combat Trafficking in Persons, the agency overseeing the U.S. anti-trafficking policy in 2003,[59] and their discursive policies permeate most modern anti-trafficking laws worldwide.

Neo-abolitionists used their position within the U.S. to lobby the international community to suit its mandates. Critically debated in the development of the Protocol was the definition of “trafficking”, and whether it would include “non-coerced, adult migrant prostitution.”[60] The Coalition Against Trafficking in Women (CATW) and International Human Rights Network, representing a U.S.-funded, neo-abolitionist mandate, insisted language of coercion be removed, since there is no possibility of consent in prostitution and including the language would imply otherwise.[61] The Human Rights Caucus, on the other hand, took a harm-reduction and human rights approach and advocated trafficking should include elements of force, fraud or coercion, because this separated voluntary from non-voluntary acts and implied prostitution was distinctly consensual.[62] The final definition of “trafficking” in the Protocol read as follows:

“Prostitution” as defined by the Protocol is strictly limited to the context of trafficking in persons, and is not otherwise defined; instead, the Protocol permits individual signatory states to manage prostitution within their respective domestic laws.[64] Prostitution is fully criminalized in the U.S. under various state and federal laws, with the exception of several counties in Nevada that allow brothels, and until 2009, Rhode Island. Sex workers, their clients, advertisers, staff in sex related industries, and those who could materially benefit from prostitution income are subsumed under these laws.[65] The U.S. has used the flexibility garnered by the Protocol to create further provisions within the TVPA that restrict sex trafficking to necessarily include elements of coercion and fraud, through the newly defined “severely trafficked” victim.

By labelling “sex trafficking” as a separate form of human trafficking, the U.S. has codified the neo-abolitionist doctrine of prostitution as “white slavery”, creating an inconsistent interpretation of “trafficking” by sovereign states. In turn this impacts how countries regulate domestic prostitution laws, and their response to U.S. or international sanctions based on how they address human trafficking.[67]

The TVPA authorizes a release of the annual Trafficking in Persons report [TIP]. Now in its 20th year, the report provides an overview of countries’ efforts to combat human trafficking. A tier-based ranking system is assigned based on how well they meet the TVPA’s minimum standards to eliminate trafficking, judged on a country’s efforts of compliance to the TVPA or complicity in trafficking.[68] By virtue of the TIP, the U.S. has unilaterally appointed itself as “global sheriff” in assessing countries’ efforts to combat human trafficking.[69] It holds a Tier 1 status, fully meeting the minimum standards for the elimination of trafficking. The TVPA authorizes the U.S. to make economic sanctions against countries who do not meet the standards outlined in the TIP or related legislation by withholding non-humanitarian or non-trade related aid.[70] Support for non-profit, non-governmental and other groups is restricted to those who adopt an anti-trafficking and anti-prostitution stance; those who do not remain ineligible to receive funds.[71]

Canada has received criticism from the U.S. and U.N. on its sub-par anti-trafficking record and lax immigration control,[72] despite having had strong anti-trafficking initiatives in place since 2002. Similar to the U.S.’ conglomerate of security and immigration provisions enacted post-9/11, Canada instituted the Interdepartmental Working Group on Trafficking in Persons (IWGTIP) in the 1990’s that includes governmental agencies dealing with crime, immigration, security, intelligence, foreign affairs, and police.[73] The heavy influence from the U.S. and international community likely contributed to Canada’s desire to position itself as a global leader in anti-trafficking policies in order to strengthen relationships with foreign nations.[74] Canada, in fact, has significant criminal and non-criminal provisions surrounding human trafficking that are closely intertwined with prostitution. Both the Immigration and Refugee Protection Act [IRPA] and the Criminal Code [Code] list human trafficking as an offence, and recent changes to prostitution laws have mirrored those of other countries in adopting what is colloquially known as “end-demand” legislation.

The Protection of Communities and Exploited Persons Act [PCEPA][75] codified the link between trafficking and prostitution through near-identical language used to describe human trafficking in both immigration and criminal contexts. PCEPA was enacted by Stephen Harper’s conservative administration following the decision in Canada (Attorney General v. Bedford), where several prostitution-related offences were declared of no force and effect because they infringed on Charter rights of life, liberty and security of the person.[76] PCEPA is modelled after Sweden’s laws[77] that seek to eliminate prostitution by providing prosecutorial immunity to sellers, while buyers, third-parties or others who may benefit economically, face strict penalties.[78] The emphasis on denouncement, deterrence, and “rescue” creates a framework necessary to “end the demand” for prostitution.[79]

Trafficking in persons is considered under ss. 279.01 and 286.3. Section 279.01(1) includes “recruits, transports, transfers, received, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation.”[80] Consent is never available in a trafficking context.[81] Moreover, anyone found to be living with or in frequent company of a person who is exploited is presumed to be trafficking this person.[82] Exploitation is committed when a person causes another to “provide, or offer to provide a service”, and includes elements of threat of force, coercion, deception, or abused a position of power. The perceived threat of safety is not on behalf of the trafficked person; it is what an outsider would reasonably believe.[83]

Section 286.3 outlines the offence of procuring for the purposes of prostitution, with near-identical language used in s. 279.01(1):

The former “living off the avails” of prostitution offence was redrafted following Bedford, and is now considered “receiving a material benefit.”[85] Receiving a material benefit from trafficking or prostitution is prohibited in the Code under ss. 279.02(1) and 286.2(1), with identical language, save for the distinction of prostitution as a separate form of exploitation under s. 286.2(1). Penalties are the same for both provisions.[86] Within prostitution, the same language around presumption of guilt applies to receiving material benefit as is does trafficking, in that anyone found to be living with or in frequent company of a person who is exploited is presumed to be receiving material benefit from that person, absent to evidence of the contrary in very limited exceptions.[87]

Within the IRPA, trafficking-related offences are considered under. s. 118, with associated penalties given under s. 117.[88] Trafficking in persons includes abduction, fraud, deception, use of threat or coercion, or recruitment or transportation into Canada, or receipt or harbouring persons within Canada.[89] The 2010 Safe Streets and Communities Act amended the IRPA and gave border security agents the discretion to deny work permits to anyone they believed were at risk of sexual exploitation upon entry to Canada.[90]

Several national initiatives have been launched in Canada. The 2012 National Action Plan to Combat Human Trafficking (National Action Plan) sought to consolidate all anti-trafficking activities in a single plan while launching aggressive initiatives to address trafficking. The plan aligned with international practices outlined in the Protocol, though the 4-Pillars: prevention, protection, prosecution, and partnerships.[91] Subsequent program evaluations in 2017 outlined the need to have a national strategy to address trafficking, and recommended improved report facilitation, data collection, collaboration and partnerships.[92]

In 2018 the Justice Committee issued its report on Canada’s response to human trafficking[93] with further recommendations. Several abolitionists were quoted in the report, who repeated the diatribe that “prostitution equals violence”, while sex work advocates cited specific examples of safety and criminal issues affecting sex workers in Canada.[94] In conjunction with court and police-reported data the 2018 report issued recommendations that centred on surveillance, through the creation of “awareness” campaigns, public and private industry training, using financial information, policing work permits and enhancing data collection strategies.[95]

Minimal attention was given to providing assistance to actual trafficking victims, save for a mention of a national trafficking hotline that gives a cursory nod encouraging victims to report instances of trafficking, and by reiterating the need to reduce temporary foreign worker’s vulnerability. Support services were somewhat addressed in the 2019 Human Trafficking Consultation Report, which called for a survivor-centric approach in addressing the root causes of trafficking, particularly concerning Indigenous women and girls and foreign workers in Canada.[96] However themes of surveillance were regurgitated by touting the need for increased awareness, education, detection, and investigation.

Evaluating the Effectiveness of Anti-Trafficking and Prostitution Laws

It is difficult to accurately capture data on human trafficking and prostitution. Inaccurate statistics, spurious comparisons, bias from self-interested groups, media outrage, and the clandestine nature of sex work all inform the hyperbolic rhetoric that associate sex trafficking with prostitution.[97] Inconsistent definitions of “trafficking” between Canada/U.S. and international regulations is especially problematic, because laws supposedly unified under one “roof” are not evenly applied, despite consensus from signatories to the Protocol and other agreements.[98]

Weitzer argues that accurate research must consider the type of policies within a jurisdiction, including various types of regulation or criminalization, and using accurate research methods founded in scientific logic.[99] The efficacy of these laws is often assessed at the outcome level; a program or law’s success (or failure) is determined by the numbers — reduced trafficking and prostitution along with increased prosecution and conviction equal a win for those in support of carceral protectionist laws. But if data collection is inherently flawed, so too is interpreting outcomes of any attempt to combat trafficking.

Yet determining outcomes of any initiative is timely, costly, complex, and often resisted by groups implementing anti-trafficking policies who act in their own self-interest. “Outcome” is frequently determined through criminal law,[100] which provide an easy way to measure “results”. Prosecutions and convictions support the neo-abolitionist assertion of a carceral regime as necessary to combat trafficking. What determines “success”, then, depends on who you ask. Most often it is key stakeholders who have the say: donors, government agencies, non-governmental organizations, law enforcement and anyone with skin in the game whose financial interest is served by producing results will likely provide input on how those resulted should be framed.[101] Donors requiring “hard data” to prove their money is being spent wisely adds pressure on grant recipients create an overreliance on quantitative measurements that may indicate some level of “change”, however irrelevant or inapplicable to the outcome desired.[102]

“Impact evaluation” of anti-trafficking programs is commonly touted as the most appropriate way in which to judge success, given the cause-effect analysis involved; but the substantial time, costs, resources and expertise that accompany this method is prohibitive.[103] Other challenges associated with obtaining quality data include the clandestine nature of trafficking, and re-traumatizing survivors with follow-up interviews.[104] One could frame these factors within a scarcity context,[105] although a more transparent approach would be to acknowledge that neo-abolitionists are highly resistant to learning about their campaign short comings, since proper evaluation of effectiveness from outside sources would be contrary to their position.[106]

Program evaluation conducted by self-interested groups is prone to confirmation bias,[107] negating any possibility of objectivity within the report. USAID’s appraisal of international anti-trafficking programs in 2012 exemplifies this, in that all countries assessed received funding through that program.[108] Although they consider impact evaluation to be the gold standard by which programs should be judged,[109] “success or failure of U.S. foreign aid programs is not entirely clear, in part because historically, most aid programs have not been evaluated for the purpose of determining their actual impact.”[110]

It is exceedingly difficult to evaluate cause and effect of any U.S. sponsored anti-trafficking program. By modifying the Protocol’s definition of “trafficking” to suit its own needs, the U.S. uses its domestic policies as a way to influence those of other sovereign states, which then has an impact on how those states are evaluated under the annual TIP Report.[111] Evaluation becomes next to impossible under these constraints when the U.S. continually moves the target which states are intended to reach. Operating under the threat of economic sanction creates an environment where states comply with the TVPA in order to obtain a high ranking in the annual TIP Report. The information gleaned from these Reports becomes unreliable since states may downplay the seriousness of their trafficking problems, or undermine government and local initiatives who work to raise the profile of trafficking.[112]

In February 2021, the Canadian Centre to End Human Trafficking [the Centre], outlined its research findings on trafficking practices falling along transportation routes in Canada. It examined various articles and reports from academic institutions, government, community-based agencies, and news outlets, held semi structured interviews with frontline service delivery staff and law enforcement officers who worked with victims and/or survivors of human trafficking. No actual trafficking victims were interviewed. Although the report acknowledged non-sexual labour trafficking in a single graphic, the remainder of the report focuses solely on sex trafficking as human trafficking, because the “research was not able to conclude that the corridors are being systematically used to propagate labour trafficking in Canada.”[113]

The report is titled “Human Trafficking Corridors in Canada” and though it gives the impression that transportation routes would be the core focus, the report lacks any real substance in this area. Instead, the Centre uses the opportunity to rehash questionable statistics various elements of human trafficking. The report’s findings compare responses given by law enforcement and service providers on trafficking survivor origin, types of sex trafficking, victim and trafficker characteristics, and barriers to accessing and providing services. Discrepancies between service provider and law enforcement responses leave the reader to question the veracity of the findings, which is not explained in the paper and raw data is neither provided nor accessible. For example, the geography of trafficking follows along major Canadian highways including Ontario’s 400 series and the Trans-Canada Highway.[114] This is unsurprising, since the majority of service provider and law enforcement respondents indicated land transportation was the most commonly used method. An example is given in Figure 1 below.

Figure 1: Methods of transportation used along human trafficking corridors, adapted from “Human Trafficking Corridors in Canada”, 2021, Canadian Centre to End Human Trafficking, page 34.

Similar disparities are seen for data on the economics of trafficking, victim and trafficker characteristics, and the ways in which traffickers lure victims. Nowhere in the report are the data mismatches between service provider and law enforcement accounted for.

For all the attention given to awareness, detection and prosecution of trafficking cases, evidence in support of the effectiveness of these laws is sorely lacking. In 2018, Statistics Canada[115] cited 1,708 incidents of police-reported human trafficking occurring between 2009 and 2018, roughly 68% of which were offences under the Criminal Code (the specific provision is not given). The majority of trafficking offences (83%) occurred between 2014 and 2018, a period where Canada added a third trafficking provision under s. 283.3(1) following PCEPA. There were 2,250 people charged with 3,537 prostitution offences between December 2014 and year-end 2018, the majority (82%) of which were charges on obtaining sexual services for consideration, while just 14% were charged with procurement.[116]

Millar and O’Doherty conducted a comprehensive analysis of trafficking and prostitution offences between 2007 and 2018. Although a fulsome summary of this report is beyond the scope of this analysis, it is worth noting that within that timeframe, just 92 trafficking in persons (under s. 118 or ss. 279.01–270.04) cases were verified as having gone through legal proceedings. Approximately half resulted in at least one trafficking conviction, 38% resulting in full or partial acquittals, or withdrawal or staying of charges.[117] In contrast, Statistics Canada reported 306 cases with at least one trafficking in persons charge between 2008 and 2016.[118] The Centre’s 2021 report, however, posits that the “actual number of victims and survivors is significantly higher” than reported by Statistics Canada,[119] acutely reflective of the tendency of neo-abolitionists to grossly overstate human trafficking cases to in order to justify their carceral feminist approach to “solving” the human trafficking problem.

The Impact of Anti-Trafficking Laws on Sex Worker Safety

Sex work criminalization in any form has been scorned by human rights and sex work advocacy groups worldwide.[120] It has shown little success in reducing the demand for prostitution, the number of people working in the industry, or the harms associated with the practice. Laws entrenched in carceral protectionism, which views arrest and detention as necessary to prevent women and girls from experiencing violence,[121] have not proven to be effective in eliminating prostitution or human trafficking. While the desired outcome of criminalization is to deter and denounce prostitution via penal sanctions, the real effect is that it increases sex workers’ risk of experiencing various forms of physical and social harm. Despite the ability for risk reduction practices to ensure safe working conditions, sex work is generally a high-risk profession because of legal frameworks, societal norms, and public shaming attached to it.[122]

A wealth of international research demonstrates the harms associated with criminalizing sex work. Yet states chose to ignore this and instead create a series of laws that continue to severely hinder sex worker safety by increasing their risk of violence. The laws are formed not on an impartial analysis of facts, but on conservative ideologies that are grounded in antiquated concepts of “moral nationalism”. At best, the laws represent a legislature that is completely out of touch with society. At worst, they give an indication that sex workers — one of the most vulnerable populations — are disposable.

New Zealand fully decriminalized sex work in 2003 through the Prostitution Reform Act.[123] The Act operates within a framework that legitimizes sex work as a form of labour through practices that promote public health and safeguards sex workers’ health and security, making it a model for the study of decriminalization worldwide. The benefits are well documented in the literature, and several international agencies strongly support the decriminalization of sex work as the preferred legal framework that facilitates sex worker safety.[124] Whereas decriminalization models recognize the difference between sex work and trafficking, criminalization frameworks inaccurately associate these practices with sex trafficking.

Neo-abolitionist frameworks represent a step backwards in sex work law and instead create an oppressive system that infringe on sex worker safety and security, while ignoring the large body of social science research that supports decriminalization as a preferred legal framework to reduce risks to sex workers.[125]

Sex workers cite that having someone manage the administration, logistics, financial element, and security of their business helps enforce client boundaries and offers an element of safety they may not otherwise have.[126] Managers of indoor workplaces can promote safety of sex workers by screening clients and banning dangerous people, being present in areas where sex work occurs, and promoting sexual health by supplying condoms to workers.[127] Many sex workers operate collectively, and some may work directly for other sex workers, for example through agencies or massage parlours.[128] Others may obtain services from their peers, such as renting in-call space, hiring administrative assistants or availing of security systems.[129]

Despite the self-reported benefits that sex workers claim from having assistance in managing their business, these arrangements directly infringe on various procurement and material benefit offences. Third-party criminalization is a barrier to obtaining verified client identification, in addition to asking for police assistance in the event of violence or robbery.[130] Managers of indoor workspaces actively distance themselves from negotiations and promoting sexual health in an effort to avoid prosecution.[131] Their role in facilitating safety is greatly reduced, by restricting access to condoms and HIV/STI screening.[132] Condoms can serve as “evidence” of prostitution, even if for a workers’ own personal use, so managers will often ensure none are onsite.[133] Sex workers are pressured into having unprotected sex, which subsequently increases their risk of client-perpetrated violence.[134] The majority of relationships targeted by procurement and material benefit laws do not involve “pimps” or other forms of abuse.[135] They do, however, prevent sex workers from legally availing of security practices such as indoor spaces and third-party services that have been established as necessary for increasing their security.

Criminalization increases sex workers’ risk of arrest and presents barriers to working safely by limiting their ability to screen clients, negotiate their services or work collectively.[136] Police are reported to use violence and abuse of power as methods of coercion, including arbitrary arrest, bribery and extortion, physical and sexual violence, and limits access to justice.[137] Sex workers lack confidence in the ability of police to assist them with incidents of violence, citing fear of arrest and reinforcement of stigma through prejudicial, racist and misogynistic conduct.[138]

Street-based sex workers are at a particularly high risk of experiencing violence. Criminalization generally has the effect of displacing these workers and their clients to more secluded areas in order to avoid police detection and arrest by law enforcement.[139] In turn they are less able to rely on their peers as a safety resource,[140] and tend to rush any client screening and negotiations which increased their risk of experiencing violence and being subject to unprotected sex.[141] The inability to speak freely about sexual services in public means clients are uncertain of what constitutes “sexual services”.[142] This creates a risk of pushing sex worker boundaries, asking for unsafe services, refusing to engage in safe sex practices, and generally exposing sex workers to violence.[143]

In indoor-based sex work, sex workers report the need to be elusive when it comes to disclosing the true nature of their business, for example to clients or other service providers, because doing so can create criminal liability.[144] The inability to be transparent about their services prevents access to condoms and other safety resources, which increases the risks sex workers face.[145] Sex workers are unable to legally negotiate transaction conditions with clients, further limiting access to harm-reduction.[146] This also creates confusion among clients, who report being uncertain of services that sex workers provide, which contributes to their mistrust of sex workers.[147]

In an asymmetric criminalization model, sex workers are afforded immunity from certain provisions under specific circumstances[148] and are encouraged to report incidents of violence or exploitation to law enforcement.[149] Sex workers are able to sell and advertise their own sexual services, but still risk prosecution for receiving material benefits of others’ sale of sexual services, advertising for other sex workers, or ‘procuring’ others to become sex workers.[150] Immunity does not extend to commercial enterprises, and many activities associated with sex work would likely be captured under this umbrella.[151] Sex workers who rented apartments, hotels, Air BnB or other temporary lodging would place the owners under criminal liability for receiving material benefit from the sale of sexual services in the context of a commercial enterprise.[152]

Some evidence suggests sex workers may experience difficulties with defending themselves if prosecuted, given the law’s complexity and intersection with other laws which act as “exceptions to exceptions”.[153] The transactional nature of selling sexual services may trigger provisions of “aiding” and “abetting” insofar as sex workers help facilitate their sale of sexual services and are involve in committing a criminal offence.[154] Sophisticated navigation of the legal system would be required, which many sex workers could find prohibitive,[155] particularly when faced with language barriers or a general lack of understanding of rules and regulations on sex work.[156]

Sex work criminalization in any form perpetuates stigma and discrimination against those who engage in the work.[157] As a social construct, stigma attributes perceived characteristics onto the person, who is identified largely by this status alone.[158] Sex workers experience stigma though a number of channels: laws and the justice system, media, health care systems, and the public are all contributory.[159] Its impact can be felt across an individual’s social, health, and economic status, through others’ punitive actions, such as harassment, abuse and avoidance.[160]

Conclusion

Human trafficking is a complex human rights issue involving migration and labour frameworks, which neo-abolitionists have reduced to one involving morality and crime control solely focused on sexual violence against women and girls.[161] Under this theory, framing prostitution as rape as sex trafficking creates a dichotomy where consent is absolute and binary. Whenever someone consents to sex work, they are consenting to any activity and outcome associated with it; a sex worker cannot be raped because consent is implied throughout. In contrast, trafficking is wholly involuntary and no part thereof can be consensual.

The problem with this stance is that most instances of trafficking contain elements of both consent and coercion, particularly in irregular migration of non-sexual labour. Irregular migrants may knowingly consent to some forms of their irregular migration into a foreign state (e.g. hiring third parties to procure documents and transport),[162] only to later find themselves in situations where they are subject to some form of trafficking-like activities. Sex trafficking “victims” need protection, whereas irregular labour migrants need detention.

Addressing the needs of exploited labour migrants means recognizing the impact of globalization on obtaining cheap overseas labour. It means acknowledging the deep divide in global wealth between rich and poor, and on a domestic level, the precarious economic position affecting many low-income individuals. It also requires the state to recognize its own complicity in facilitating social and economic circumstances that cause people to irregularly migrate or choose sex work, such as poverty, inadequate healthcare, low education, and a lack of social or government support.

References

[1] Orchard, T. (2018). Pretty Vacant: Stolen Girls and Girlhoods in Anti-Trafficking Discourses, in The Sage Handbook of Human Trafficking and Modern Day Slavery, p. 309.

[2] Belak, B., Bennett, D. (2016). Evaluating Canada’s Sex Work Laws: The Case For Repeal, online: Pivot Legal Society <https://www.pivotlegal.org/evaluating_canada_s_sex_work_laws_the_case_for_repeal>

[3] McCarthy, B., Benoit, C., Jansson, M., Kolar, K. (2012), Regulating Sex Work: Heterogeneity in Legal Strategies, Annu Rev Law Soc Sci, 8: 255–271.

[4] Sanford, R., Martinez, D.E., Weitzer, R. (2016). Framing Human Trafficking: A Content Analysis of Recent U.S. Newspaper Articles, J Human Trafficking, 2(2): 139–155.

[5]Key Terms.” International Organization for Migration. Retrieved from https://www.iom.int/key-migration-terms

[6]Types of Migration: Irregular Migration.” Migration Data Portal. https://migrationdataportal.org/themes/irregular-migration#definition

[7] Izcara-Palacios, S.P., Ortega Brena, M. (2017). Prostitution and migrant smuggling networks operating between Central America, Mexico, and the United States. Latin American Perspectives, 44:31–49.

[8] Carling, J., Gallagher, A.T., Horwood, C. (2015). Beyond definitions. Global migration and the smuggling-trafficking nexus. Regional Mixed Migration Secretariat, November: 1–12.

[9] Lowman, J. (2000). Violence and the Outlaw Status of (Street) Prostitution. Violence Against Women, 6: 1006–1007.

[10] Balgamwalla, S. (2016). Trafficking Narratives: Conceptualizing and Recasting Victims, Offenders, and Rescuers in the War on Human Trafficking, Denver Law Review, 94(1).

[11] McLaren, J. (1986). Chasing the Social Evil: Moral Fervour and the Evolution of Canada’s Prostitution Laws, 1867–1917. Can J L & Soc, 1.

[12] McLaren, J. (1986). Chasing the Social Evil: Moral Fervour and the Evolution of Canada’s Prostitution Laws, 1867–1917. Can J L & Soc, 1.; Sampson, L. (2014). “The Obscenities of this Country’: Canada v. Bedford and the Reform of Canadian Prostitution laws, Duke J Gen L & Pol’y, 22, 137.

[13] McLaren, J. (1986). Chasing the Social Evil: Moral Fervour and the Evolution of Canada’s Prostitution Laws, 1867–1917. Can J L & Soc, 1.; Sampson, L. (2014). “The Obscenities of this Country’: Canada v. Bedford and the Reform of Canadian Prostitution laws, Duke J Gen L & Pol’y, 22, 137.

[14] Balgamwalla, S. (2016). Trafficking Narratives: Conceptualizing and Recasting Victims, Offenders, and Rescuers in the War on Human Trafficking, Denver Law Review, 94:1.

[15] Balgamwalla, S. (2016). Trafficking Narratives: Conceptualizing and Recasting Victims, Offenders, and Rescuers in the War on Human Trafficking, Denver Law Review, 94:1; McLaren, J. (1986). Chasing the Social Evil: Moral Fervour and the Evolution of Canada’s Prostitution Laws, 1867–1917. Can J L & Soc, 1.

[16] McLaren, J. (1986). Chasing the Social Evil: Moral Fervour and the Evolution of Canada’s Prostitution Laws, 1867–1917. Can J L & Soc, 1.;

[17] Otto, D. (2006). Lost in Translation: Re-Scripting the Sex Subjects of International Human Rights Law, in International Law and Its Others, 324–325 (Anne Orford ed.).

[18] McLaren, J. (1986). Chasing the Social Evil: Moral Fervour and the Evolution of Canada’s Prostitution Laws, 1867–1917. Can J L & Soc, 1

[19] McLaren, J. (1986). Chasing the Social Evil: Moral Fervour and the Evolution of Canada’s Prostitution Laws, 1867–1917. Can J L & Soc, 1

[20]: International Agreement for the Suppression of White Slave Traffic Act, Paris, May 18, 1904; International Convention for the Suppression of the White Slave Traffic, art. 2, May 4, 1910, 211 Consol. T.S. 45, 1912 GR. Brit. T.S. №20; International Convention for the Suppression of the Traffic of Women and Children art. 5, Sept 30, 1921, 9 L.N.T.S. 415; International Convention for the Suppression of the Traffic in Women of the Full Age, Oct. 11, 1933, 150 L.N.T.S. 431.

[21] International Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others.

[22] McCarthy, B., Benoit, C., Jansson, M., Kolar, K. (2012). Regulating Sex Work: Heterogeneity in Legal Strategies, Ann Rev Law Soc Sci, 8: p. 265.

[23] McCarthy, B., Benoit, C., Jansson, M., Kolar, K. (2012). Regulating Sex Work: Heterogeneity in Legal Strategies, Ann Rev Law Soc Sci, 8: p. 258.

[24] Working Group on the Legal Regulation of the Purchase of Sexual Services, “Purchasing Sexual Services in Sweden and the Netherlands: Legal Regulation and Experiences. An abbreviated English version.” (2004) Ministry of Justice and the Police. Working Paper G-0367.

[25] Canada, Department of Justice, “Technical Paper: Bill C-36, Protection of Communities and Exploited Persons Act” (2014), 1–14 [Technical Paper].

[26] Brennan, D. (2017). Fighting human trafficking today: Moral panics, zombie data, and the seduction of rescue, Wake Forest L Rev, 52: 485–486.

[27] See generally: Belak, B., Bennett, D. (2016). Evaluating Canada’s Sex Work Laws: The Case For Repeal, online: Pivot Legal Society < https://www.pivotlegal.org/evaluating_canada_s_sex_work_laws_the_case_for_repeal> at p. 6.; Amnesty International, “Policy on State Obligations to Respect, Protect, and Fulfil the Human rights of Sex Workers (26 May 2016) POL 30/4062/2016, online: Amnesty International <https://www.amnesty.org/download/Documents/POL3040622016ENGLISH.PDF>; Human Rights Watch, “Why Sex Work Should Be Decriminalized” (7 August 2019) online: Human Rights Watch, <https://www.hrw.org/news/2019/08/07/why-sex-work-should-be-decriminalized>

[28] Parliamentary Council Office, Prostitution Reform Act, №3, New Zealand, 2003.

[29] McCarthy, B., Benoit, C., Jansson, M., Kolar, K. (2012). Regulating Sex Work: Heterogeneity in Legal Strategies, Ann Rev Law Soc Sci, 8: p. 258.

[30] Weitzer, R. (2007). The Social Construction of Sex Trafficking: Ideology and Institutionalization of a Moral Crusade, Pol & Soc, 35, 3: 450.

[31] Sampson, L. (2014). ‘The Obscenities of this Country’: Canada v. Bedford and the Reform of Canadian Prostitution laws, Duke J Gen L & Policy, 22(137): p. 146.

[32] Canada, Department of Justice, “Technical Paper: Bill C-36, Protection of Communities and Exploited Persons Act” (2014), 1–14 at 4. [Technical Paper]

[33] Sampson, L. (2014). ‘The Obscenities of this Country’: Canada v. Bedford and the Reform of Canadian Prostitution laws, Duke J Gen L & Policy, 22(137): p. 145–146.

[34] Brennan, D. (2017). Fighting human trafficking today: Moral panics, zombie data, and the seduction of rescue, Wake Forest L Rev, 52: 485–486.

[35] Sampson, L. (2014). ‘The Obscenities of this Country’: Canada v. Bedford and the Reform of Canadian Prostitution laws, Duke J Gen L & Policy, 22(137): p. 145–146.

[36] Weitzer, R. (2007). The Social Construction of Sex Trafficking: Ideology and Institutionalization of a Moral Crusade, Pol & Soc, 35, 3: 449, 451.

[37] Balgamwalla, S. (2016). Trafficking Narratives: Conceptualizing and Recasting Victims, Offenders, and Rescuers in the War on Human Trafficking, Denver Law Review, 94(1), p. 14.

[38] O’Brien, E. (2016). Human Trafficking Heroes and Villains: Representing the Problem of Anti-Trafficking Awareness Campaigns, Soc & Legal Stud, 25: 205, 208–209.

[39] Millar, H., O’Doherty, T. (2020). Racialized, Gendered, and Sensationalized: An Examination of Canadian Anti-Trafficking Laws, Their Enforcement, and Their (Re)Presentation, Can J Law Soc, 35(1): p. 31.

[40] Orchard, T. (2018). Pretty Vacant: Stolen Girls and Girlhoods in Anti-Trafficking Discourses, in The Sage Handbook of Human Trafficking and Modern Day Slavery, p. 301; Balgamwalla, S. (2016). Trafficking Narratives: Conceptualizing and Recasting Victims, Offenders, and Rescuers in the War on Human Trafficking, Denver Law Review, 94(1), p. 16.

[41] Orchard, T. (2018). Pretty Vacant: Stolen Girls and Girlhoods in Anti-Trafficking Discourses, in The Sage Handbook of Human Trafficking and Modern Day Slavery, p. 300.

[42] Orchard, T. (2018). Pretty Vacant: Stolen Girls and Girlhoods in Anti-Trafficking Discourses, in The Sage Handbook of Human Trafficking and Modern Day Slavery, p. 298, 301.

[43] Orchard, T. (2018). Pretty Vacant: Stolen Girls and Girlhoods in Anti-Trafficking Discourses, in The Sage Handbook of Human Trafficking and Modern Day Slavery, p. 307–308.

[44] Balgamwalla, S. (2016). Trafficking Narratives: Conceptualizing and Recasting Victims, Offenders, and Rescuers in the War on Human Trafficking, Denver Law Review, 94(1), p. 21.

[45] Balgamwalla, S. (2016). Trafficking Narratives: Conceptualizing and Recasting Victims, Offenders, and Rescuers in the War on Human Trafficking, Denver Law Review, 94(1), p. 21–22.

[46] Srikantiah, J. (2007). Perfect Victims and Real Survivors: The Iconic victim in Domestic Human Trafficking Laws, BUL Rev, 87, p. 197.

[47] Balgamwalla, S. (2016). Trafficking Narratives: Conceptualizing and Recasting Victims, Offenders, and Rescuers in the War on Human Trafficking, Denver Law Review, 94(1), p. 21.

[48] Farley, M., Schuckman, E. Golding, J.M. et al. “Comparing Sex Buyers with Men Who Don’t Buy Sex: ‘You can have a good time with the servitude’ vs. ‘You’re supporting a system of degradation’ (delivered at the Prostitution Research & Education, Psychologists for Social Responsibility Annual Meeting, Boston, MA, 15 July 2011), 1–64 at 30.

[49] Farley, M., Schuckman, E. Golding, J.M. et al. “Comparing Sex Buyers with Men Who Don’t Buy Sex: ‘You can have a good time with the servitude’ vs. ‘You’re supporting a system of degradation’ (delivered at the Prostitution Research & Education, Psychologists for Social Responsibility Annual Meeting, Boston, MA, 15 July 2011), 1–64 at 31.

[50] Monto, M.A., Milrod, C. (2014). Ordinary or Peculiar Men? Comparing the Customers of Prostitutes With a Nationally Representative Sample of Men, Int J Offender Ther Criminol, 58(7), p. 809.

[51] Weitzer, R. (2007). The Social Construction of Sex Trafficking: Ideology and Institutionalization of a Moral Crusade, Pol & Soc, 35, 3: 449, 451.

[52] Millar, H., O’Doherty, T. (2020). Racialized, Gendered, and Sensationalized: An Examination of Canadian Anti-Trafficking Laws, Their Enforcement, and Their (Re)Presentation, Can J Law Soc, 35(1): p. 31.

[53] Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the
United Nations Convention against Transnational Organized Crime, G.A. res. 55/25 of 15 November 2000. [Protocol].

[54] Chuang, J.A. (2010). Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti-Trafficking Law and Policy, U Penn L Rev, 158: 1662.

[55] Trafficking Victims Protection Act of 2000, Pub. L. №106–386, 114 Stat. 1464 (2000). [TVPA] This Act launched a series of anti-trafficking efforts in the United States. Congress has reauthorized the TVPA several times since then.

[56] Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001, Pub. L. №107–56, 115 Stat. 272, Oct. 26, 2001. [Patriot Act].

[57] The Enhanced Border Security and Visa Reform Act of 2002, Pub. L. 107–173, 116 Stat. 543, May 14, 2002. [EBSVERA].

[58] Homeland Security Act of 2002, Pub. L. 107–296, 116 Stat. 2135, Nov. 25, 2002. [Homeland Security Act]

[59] Chuang, J.A. (2010). Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti-Trafficking Law and Policy, U Penn L Rev, 158: 16781.

[60] Gallagher, A. (2001). Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis, Hum Rts Q, 23: p. 984.

[61] Chuang, J.A. (2010). Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti-Trafficking Law and Policy, U Penn L Rev, 158: 1675.

[62] Chuang, J.A. (2010). Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti-Trafficking Law and Policy, U Penn L Rev, 158: 1662.; Kaye, J., Millar, H., O’Doherty, T. (2019). Exploring Human Rights in the Context of Enforcement-Based Anti-Trafficking in Persons Responses, in The Palgrave International Handbook of Human Trafficking, p. 4.

[63] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2237 U.N.T.S. 319, art. 3.

[64] Ad Hoc Committee on the Elaboration of a Convention Against Transnational Organized Crime, Interpretive Notes for the Official Records of the Negotiation of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto, para 64, U.N. Doc A/55/383/Add.1 (Nov. 3, 2000).

[65] U.S. state and federal laws vary widely across jurisdictions, and it is outside of the scope of this paper to discuss each. For details, see ProCon.org, “U.S. Federal and State Prostitution Laws and Related Punishments”, (5 April 2018), online: ProCon.org <https://prostitution.procon.org/us-federal-and-state-prostitution-laws-and-related-punishments/>

[66] TVPA, s. 103(8)

[67] Chuang, J.A. (2010). Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti-Trafficking Law and Policy, U Penn L Rev, 158: 1706.

[68] U.S. Department of State, Trafficking in Persons Report, 20th Edition, June 2020, p. 40–41.

[69] Chuang, J.A. (2006). The United States as Global Sheriff: Using Unilateral Sanctions to Combat Human Trafficking, Michigan J Int Law, 27(2): 1609–1653.

[70] TVPA, s. 110(a).

[71] 2003 TVPA s. 7.

[72] Oxman-Martinez, J., Lacroix, M., Hanley, J. (2005). Victims of Trafficking in Person: Perspectives from the Canadian Community Sector. Department of Justice, online: < https://www.justice.gc.ca/eng/rp-pr/cj-jp/tp/rr06_3/rr06_3.pdf>

[73] Public Safety Canada, National Action Plan to Combat Human Trafficking, (2012), online: Public Safety Canada <https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ntnl-ctn-pln-cmbt/ntnl-ctn-pln-cmbt-eng.pdf>

[74] De Shalit, A., Heynen, R., van der Meulen, E. (2014). Human Trafficking and Media Myths: Federal Funding, Communication Strategies, and Canadian Anti-Trafficking Programs, Can J Communication, 39: 395.

[75] Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other acts, 2nd Sess, 41st Parl 2014, c. 25. [Protection of Communities and Exploited Persons Act (PCEPA)].

[76] 2013, SCC 72 [Bedford]

[77] Working Group on the Legal Regulation of the Purchase of Sexual Services, “Purchasing Sexual Services in Sweden and the Netherlands: Legal Regulation and Experiences. An abbreviated English version.” (2004) Ministry of Justice and the Police. Working Paper G-0367.

[78] Canada, Department of Justice, “Technical Paper: Bill C-36, Protection of Communities and Exploited Persons Act” (2014), 1–14 [Technical Paper].

[79] Brennan, D. (2017). Fighting human trafficking today: Moral panics, zombie data, and the seduction of rescue, Wake Forest L Rev, 52: 485–486.

[80] Criminal Code of Canada R.S.C. 2014, c. 25, s. 279.01(1).

[81] Criminal Code of Canada R.S.C. 2014, c. 25, s. 279.01(2).

[82] Criminal Code of Canada R.S.C. 2014, c. 25, s. 279.01(3).

[83] Criminal Code of Canada R.S.C. 2014, c. 25, s. 279.04.

[84] Criminal Code of Canada R.S.C. 2014, c. 25, s. 286.3(1).

[85] Section 212(1)(j) of the Criminal Code is inconsistent with the Charter on account of its overbreadth. The provision prohibited anyone from living off the avails of prostitution of another person. Though originally drafted to prevent exploitation of individuals by “pimps”, it failed to distinguish between instances of exploitation and those where sex worker safety and security may be increased (e.g., by hiring security or drivers, or availing of health care). This overbreadth infringed upon s. 7 Charter rights. See Bedford, supra at para 145.

[86] Criminal Code of Canada R.S.C. 2014, c. 25, ss. 279.02(1), 286.2(1)(2).

[87] Criminal Code of Canada R.S.C. 2014, c. 25, s. 286.2(1)(3–5).

[88] Immigration and Refugee Protection Act S.C. 2001, c. 27. [IRPA]

[89] Immigration and Refugee Protection Act S.C. 2001, c. 27. ss. 118(1)(2).

[90] Immigration and Refugee Protection Act S.C. 2001, c. 27. s. 30(1.4).

[91] Public Safety Canada, National Action Plan to Combat Human Trafficking, (2012), 9, online: Public Safety Canada <https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ntnl-ctn-pln-cmbt/ntnl-ctn-pln-cmbt-eng.pdf>

[92] Public Safety Canada, 2016–2017 Horizontal Evaluation of the National Action Plan to Combat Human Trafficking (NAP-HT).

[93] Standing Committee on Justice and Human Rights, “Moving Forward in the Fight Against Human Trafficking in Canada. Report of the Standing Committee on Justice and Human Rights.” December 2018, 42nd Parliament, 1st session.

[94] Standing Committee on Justice and Human Rights, “Moving Forward in the Fight Against Human Trafficking in Canada. Report of the Standing Committee on Justice and Human Rights.” December 2018, 42nd Parliament, 1st session, p. 16–17.

[95] Standing Committee on Justice and Human Rights, “Moving Forward in the Fight Against Human Trafficking in Canada. Report of the Standing Committee on Justice and Human Rights.” December 2018, 42nd Parliament, 1st session, p. 1–4.

[96] Minister of Public Safety and Emergency Preparedness, “Human Trafficking Consultations Report” (2019), Public Safety Canada, Cat. No. PS18–47/2019E-PDF.

[97] Weitzer, R. (2015). Researching Prostitution and Sex Trafficking Comparatively, Sex Res Soc Policy, 12: 81–91.

[98] Cho, S.Y., Dreher, A., Neumayer, E. (2012). Does Legalized Prostitution Increase Human Trafficking? World Development, 41: 67–82.

[99] Weitzer, R. (2015). Researching Prostitution and Sex Trafficking Comparatively, Sex Res Soc Policy, 12: 81–91.

[100] Gallagher, A.T., Surtees, R. (2012). Measuring the Success of Counter-Trafficking Interventions in the Criminal Justice Sector: Who decides — and how? Anti-Trafficking Rev, 1: 17.

[101] Gallagher, A.T., Surtees, R. (2012). Measuring the Success of Counter-Trafficking Interventions in the Criminal Justice Sector: Who decides — and how? Anti-Trafficking Rev, 1: 18–19.

[102] Hawkins, B. (2017). Constraints to a Robust Evidence Base for Anti-Trafficking Interventions, Anti-Trafficking Review, 8: 118.

[103] Senior Policy Operating Group Grantmaking Committee. (2012). Promising Practices. A review of U.S. Government-Funded Anti-Trafficking In Persons Programs, 3, online: <https://2009-2017.state.gov/documents/organization/207712.pdf>

[104] Greene, N.L. (2015). Monitoring and Evaluation of International Counter-Trafficking Programs: Definitions, Challenges, and a Way Forward, St. John’s J Int and Comp Law, 5(2): 159–160.

[105] Greene, N.L. (2015). Monitoring and Evaluation of International Counter-Trafficking Programs: Definitions, Challenges, and a Way Forward, St. John’s J Int and Comp Law, 5(2): 162.

[106] Chuang, J.A. (2010). Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti-Trafficking Law and Policy, U Penn L Rev, 158: 1721.

[107] Hawkins, B. (2017). Constraints to a Robust Evidence Base for Anti-Trafficking Interventions, Anti-Trafficking Review, 8: 118.

[108] Senior Policy Operating Group Grantmaking Committee. (2012). Promising Practices. A review of U.S. Government-Funded Anti-Trafficking In Persons Programs, online: <https://2009-2017.state.gov/documents/organization/207712.pdf>

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Toronto-based sex worker, entrepreneur, law student and all-round sassy babe. Follow me on twitter at @lafemmeisobel or visit my site at www.isobelandrews.com

Toronto-based sex worker, entrepreneur, law student and all-round sassy babe. Follow me on twitter at @lafemmeisobel or visit my site at www.isobelandrews.com