DOI: 10.14197/atr.201216610

Resisting the Carceral: The need to align anti-trafficking efforts with movements for criminal justice reform

Abigail Swenstein and Kate Mogulescu

Response to ATR Debate Proposition: ‘Prosecuting trafficking deflects attention from much more important responses and is anyway a waste of time and money’

Please cite this article as: A Swenstein and K Mogulescu, ‘Resisting the Carceral: The need to align anti-trafficking efforts with movements for criminal justice reform’, Anti-Trafficking Review, issue 6, 2016, pp. 118–122, www.antitraffickingreview.org

Common calls to action around human trafficking continue to urge greater law enforcement attention, increased arrests of traffickers, and more prosecutions. While prosecution of traffickers is not a waste of time or money in every instance, problems arise when anti-trafficking resources are predominantly directed to law enforcement. This approach, which we see all too often, ties efforts to a criminal justice system that is mired in dysfunction. In many instances, the prosecution-based model reveals itself as antithetical to principles of human and civil rights, ignores the reality that many trafficking survivors confront, and redirects the conversation away from important critique and reform. By prioritising prosecution above all else, this approach distances itself from contemporary efforts to build inclusive racial, economic and gender justice movements centred around broader criminal justice reform.

As attorneys on a team that defends nearly all of the people arrested for prostitution throughout New York City, and survivors of trafficking who are subject to arrest and prosecution in myriad other ways, we have witnessed firsthand the over reliance on prosecution centred models—and the way this negatively impacts both our clients and larger anti-trafficking efforts. We have observed wave after wave of policies, legislation, and media campaigns that prioritise a law enforcement approach to the issue of human trafficking and measure success only in the number of arrests made,¹ regardless of the quality of the arrests, the sustainability of the ensuing prosecutions, or whether victims view the process as a good thing. As the net widens, arrests follow, often of those who may only be tangentially involved in the trafficking, or may even be trafficked themselves. This ‘all or nothing’ paradigm misses the mark.

Many, but not all, of our clients have experienced the levels of force, fraud or coercion that would allow them to be considered ‘trafficking victims’ under the law. Though originally conceived as an anti-trafficking project, framing our work in terms of trafficking has become increasingly problematic as many of our clients’ trafficking experiences—while brutal—pale in comparison to the systemic failures and violence they have endured for far longer. The majority are hindered by these daunting obstacles related to their marginalisation, even once no longer trafficked.

Lack of employment opportunities, access to education and affordable housing means survivors, even those identified by law enforcement and participating in prosecutions, continue to struggle post-trafficking. For example, a survivor of trafficking into prostitution was forced to turn to law enforcement when, after leaving her trafficker, he petitioned for custody of their child. Her trafficker was then arrested and is currently awaiting trial. Although free from his immediate control, she continues to confront many of the same struggles that made her vulnerable to trafficking in the first place. She has no high school education, minimal family support, and now, she is saddled with a criminal record because of the conduct in which he compelled her to engage. She has limited time or resources to devote to her own healing and her lack of viable employment options further marginalise her, making raising her child extremely challenging. Stability in her life is further hindered by the sheer number of appointments required of her in order to receive meagre government assistance.

It is stories like these that we must keep in mind when constructing anti-trafficking policy. In order to truly help and empower survivors, we must first listen to them. Our clients seek access to a safe and living wage, opportunities for education, and affordable housing. They do not seek rescue at the hands of law enforcement or the court system. Yet, the loudest voices in the anti-trafficking movement continue to point to the criminal justice system as the place where the problem of human trafficking can be solved. It is these loudest voices, who insist on speaking for and about our clients, that fail to recognise the multiple ways our clients experience victimisation and violence, often as a result of poverty, homophobia, transphobia, racism, and sexism, and to consider how these larger systemic problems create vulnerability to exploitation and abuse. This failure increases the risk that anti-trafficking efforts result in the criminalisation of the very population purported to be its beneficiaries.

Trying to arrest our way out of a multi-faceted problem has failed before. Even where trafficking efforts may be understood as well-meaning, we will lose the ‘war’ on trafficking if we continue to fight it the same way we fought the war on drugs.² Both wars have overwhelmingly relied on the arrests of low-level offenders rather than perpetrators of more serious offences. As with the war against drugs, the collateral damage of anti-trafficking efforts that prioritise prosecution comes in the form of scores of arrests.

While the drug war resulted in the targeting of those possessing small amounts of controlled substances, the war on trafficking similarly targets individuals in the commercial sex industry for arrest—many of whom are trafficked into prostitution and many of whom are not. With commercial sex, while the media often touts the ‘success’ of sting operations aimed at rescuing victims,³ when unpacked, it is clear that these stings simply result in more arrests of people engaging in prostitution—ushering a steady flow of women (predominantly women of colour) into the clutches of the criminal justice system.⁴ The singular focus on prosecution exacerbates the already concerning power imbalance between law enforcement and those the law is crushingly enforced against.

More than that, when trafficking is framed as an individual act of violence into which the state must intervene, criminal prosecution becomes indispensable. This diverts attention from more difficult, but critical issues of state responsibility. If, instead, the state were required to take responsibility⁵ for the conditions that give rise to this abuse, we would see steps taken to eradicate poverty, provide safe and affordable housing, educate more widely, and dismantle oppressive systems across the board. However well-intentioned, wedding anti-trafficking efforts to our criminal systems means efforts end up exacerbating the harmful practices operating in criminal courts across the country—disproportionate arrests of people of colour, inadequately funded indigent defence systems, over reliance on jail and incarceration, and a lack of post-release services for those leaving prison. All of this serves to worsen conditions in certain communities, creating a fertile ground for exploitation and abuse in various labour sectors, including commercial sex.

In the United States, we find ourselves in a critical, and long overdue, moment in criminal justice reform. Conversation and practice are shifting, and efforts to challenge racially motivated policing, police violence, mass incarceration, and our ‘crimmigration’⁶ system, are finally gaining traction.⁷ Continuing to place anti-trafficking efforts squarely within these systems counteracts this progress. Arrests and prosecutions done in the name of combating trafficking then work to fortify the very systems other social justice movements are rightfully working to reform.

Abigail Swenstein and Kate Mogulescu are public defenders at The Legal Aid Society in New York. Members of the Exploitation Intervention Project (EIP), they represent individuals charged with prostitution offences in New York City’s criminal courts and advocate for victims of human trafficking facing prosecution in the criminal justice system. EIP also leads know-your-rights workshops and conducts trainings for fellow public defenders, organisers, persons in the sex trades, and legal stakeholders. Additionally, EIP engages in broader criminal justice advocacy for survivors of trafficking, including post-conviction representation. Abigail is a graduate of the CUNY School of Law and Georgetown University. Kate is a graduate of Yale Law School and the State University of New York at Binghamton. Email: ASwenstein@legal-aid.org, KAMogulescu@legal-aid.org

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