What is Choice? Examining Sex Trafficking Legislation Through the Lenses of Rape Law and Prostitution

Sex trafficking has proven particularly immune to attempts to eradicate it. One reason may be that some types of demand will always be illegal and thus always vulnerable to trafficking, such as violent sex or sex with minors. Another reason, however, and the one that is the subject of this article, is the lack of cohesive policy on one of the main issues surrounding trafficking: consent. As discussed below, conflicting perspectives on the nature of consent have impeded the development of effective anti-trafficking efforts.One of the main debates plaguing efforts to eliminate sex trafficking involves the definition of the very issue: what is trafficking? This debate has raged between anti-trafficking activists who believe that all prostitution is a form of trafficking and anti-trafficking activists who believe that the term "trafficking" should only apply in cases where individuals are forced, defrauded or coerced into the sex trade.Current legislation requires that force, fraud or coercion be present in order for an offense to be considered a severe form of trafficking. This requirement applies to trafficking for all forms of labor, including the sex trade. Proponents of expanding the definition of severe forms of trafficking wish to eliminate the force, fraud or coercion requirement with regard to sex trafficking in order to make anti-trafficking legislation more effective. They do not differentiate between victims who were forced to engage in the sex trade and those who consent to being trafficked for sex work. Opponents of the expansion argue that extending the definition in this way will actually make efforts to eradicate trafficking less effective. This article examines parallels between this debate and the debates surrounding two related issues: rape and prostitution. Rape law has been plagued by the inability of many victims to prove that they did not consent to sexual intercourse. A victim’s acquiescence to sexual intercourse, even if brought about by threats to her life or well-being, has often been the basis for dismissing the rape charge or convicting the perpetrator of a lesser offense. Generally speaking, the "ideal" rape victim is a woman (preferably a virgin) who was attacked by a stranger, attempted to fight off her assailant during the entire rape, and immediately reported the rape to police. Proponents of expanding rape law beyond this idealized but atypical situation define rape broadly as a lack of consent. Opponents of expanding rape law tend to differentiate between "real rape" and other forms of sexual misconduct. The question, like that surrounding the definition of trafficking, is choice: does a woman really choose to engage in sexual conduct when she consumes alcohol, or goes on a date, or fears what will happen if she attempts to fight rather than submit? The issue of legalizing prostitution is also the subject of a great deal of debate. Some proponents of legalizing prostitution believe that doing so will legitimize women’s choices regarding sex work and provide legal protections for those who choose to engage in sex work. Opponents of legalizing prostitution believe that doing so legitimizes the exploitation of women and the violation of women’s human rights; they assert that no one ever chooses to be prostituted. The debate, once again, centers around choice. Is a choice truly a choice when made under conditions of severe economic and social disadvantages, or as a result of childhood sexual abuse? Part II of the article describes the modern form of slavery known as "human trafficking." Part III explores individual and legal connotations of choice and consent, and asks the reader to engage in an exercise designed to highlight how personal experience and bias tends to influence one’s perception of consent. Part III goes on to explore how such personal biases manifest themselves in rape law and the debate over the legalization of prostitution. This article concludes that the debate over expanding the definition of sex trafficking is unlikely to be resolved while rape law is evolving and the prostitution debate continues. An understanding of the nature of consent, free will and choice with regard to sex and sex work is in a critical stage of development and is unlikely to culminate in a broad consensus anytime soon. Without a consensus in those two areas, the questions of what is trafficking and what are the most effective means of combating it will remain unresolved.