Globalization is witnessing an extra ordinary movement of people across the borders, across the national or international borders whether legitimate or illegitimate. In the post-colonial world the distinction between the issue of trafficking and migration, and trafficking and sex work, had become distorted, resulting in the formulation of confused legal strategies that are both anti migrant, anti-sex work and anti- families. They failed to recognize why people move, and the consequences of trying to stop movement through border controls and displaced the problem onto primarily, forced sex work and prostitution. These responses are infused with assumptions about women’s appropriate roles and conservative sexual morality. The anti-trafficking campaign, with its focus on violence and victimisation, is but one example. It has generated initiatives by some states that impose minimum age limits for women workers going abroad for employment. In 1998, Bangladesh banned women from going abroad as domestic workers. Although Bangladesh is reconsidering the ban, it still remains in effect. On the same lines the Nepal Foreign Employment Act, 1985 prohibits issuing women with employment license to work overseas without the consent of women’s husband or the male guardian.
The UN protocol on trafficking 2001 and the South Asian Convention on Trafficking 2002 regard the consent of women who move or are moved across borders as largely irrelevant. Such measures conflate women’s movement or migration with trafficking, where even women moving (legally or illegally) to see higher-wage work are suspected of being trafficked. The primary reason for this conflation is projection of women as a victim of violence and this has triggered a wave of domestic and international reforms focused on criminal law, which are used to justify state restrictions on women’s right and protection of women.
The image that is produced of a third world woman is that of being sexually constrained, tradition-bound, incarcerated in the home, illiterate and poor. It is an image that is strikingly suggestive of the colonial construction of the eastern woman. Current scholarship on trafficking and sex work that takes place in post-colonial world evokes such imagery.
Human Right Watch claims not to take stand on prostitution or sex work in the report, it favors the criminalization and punishment of owners of brothels, pimps and traffickers. It strongly condemns ‘laws and official policies and practices that fail to distinguish between “prostitutes” and victims of trafficking, treating the latter as criminals rather that as persons who deserves “temporary care and maintenance” in accordance with International Human Rights standards.’ The discourse of women in the post-colonial world as being in permanent state of misery and agony, partly creates the artificial divide and assumption that the struggle for rights and self-determination is a first world phenomenon. The divide and the assumptions on which it is based are in the part because anti-trafficking has operated along a forced versus voluntary nexus. The recognition of human rights of sex-workers would entail the voluntary prostitution which neither governments nor many feminists are prepared to accept.
The new meaning of “trafficking in person” adopted by UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000), is:
“Trafficking in person shall means 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, or of abuse of power or of a position of vulnerability, or of the giving or receiving of payments or of benefits to achieve consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the 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.”
The new definition is relatively more acceptable and inclusive definition of trafficking. A striking feature of the definition is that in international scenario the expanded definition is accepted and recognizes the need to expand definition of trafficking to include forced labor, forced marriage and slavery like practices. There is some recognition that the problem of trafficking is problem of Human Rights and not law and order or public morality issues related to prostitution. However, the problem of conflation between migration and trafficking for purpose of sex-work is not done away with. Law has failed to recognize that women move for various reasons with or without reasons.
Women who belong to subaltern group move across borders for various reasons. The reason could be war, social pressure, and economic burdens. The decision of moving across the border could be consensual; she takes her decision to move across the border as an adult. Through earlier examples of countries like Bangladesh, Burma, Nepal with restriction on women employment outside the territory of the country it is proved that laws regarding anti trafficking is highly discriminatory and considering women as incapable of taking decision and failed to understand woman as an adult. The construction of women who move as victims of a web of criminal network sits in tension with counter-narrative that regards the movement of labour as part of the globalization process. The emergence of human trafficking and smuggling networks is part of the migration phenomenon that first world nation-states refuse to address other than as an issue of immigration or criminality.
** For reference read “Erotic Justice by Ratna Kapur”
Nandita Biswal
Rajat Kumar
Tripti Kanungo
