Conceptual considerations on sex work and human trafficking
The nexus between trafficking for purposes of sexual exploitation and sex work continues to be the subject of heated discussions.
On the one hand, there is the perspective that all forms of sex work are inherently exploitative and no individual would ever voluntarily render themselves to such conditions. Hence, some level of deception or coercion – or at least the abuse of a situation of vulnerability – is always involved in exposing a person to exploitative environments, making all sex work human trafficking. On the other hand, there is the view that providing sexual services is a legitimate form of work that needs to be recognized. Sex workers – just like their counterparts in other industries – have the agency to make choices about the profession and workplace they enter into.
This blog does not intend to address the discussion of whether or not sex work is inherently exploitative. It will note, however, that irrespective of these considerations, the first perspective has an important conceptual flaw with respect to international law. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children of the United Nations Convention on Transnational Organised Crime (UNTOC) defines human trafficking as:
“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 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.”
This definition separates exploitation from the deceptive or coercive means used to expose and/or maintain people to/in such conditions. The ‘means’ component is a fundamental and required element – in addition to exploitation – for human trafficking to be constituted, except in cases involving children. Thus, even if one considers adult sex work as inherently exploitative, deception or coercion must be constituted separately.
It is worth highlighting that a person can choose to be in situations of exploitation – their agency allows them to make this choice. In fact, millions of migrant workers across Southeast Asia do so on a daily basis. Their working hours may be excessive, salaries below minimum wage levels, and the accommodation provided subpar. Yet, many determine these conditions as favorable to the available alternatives.
Such circumstances are of course wrong, breach various labour laws and require addressing. However, they do not necessarily constitute human trafficking as per the definition enshrined in international law.
Vulnerability factors contributing to trafficking in the context of sex work
The causes of human trafficking are varied and complex, and there is no single set of vulnerability factors. Among the relevant aspects are gender and other inequalities, limited educational and professional opportunities, or high pressures to contribute to family income. These may be compounded by weak governance systems, broader human rights violations or dysfunctional labour migration regimes. Limited employment rights and standards, as well as inadequate monitoring and enforcement mechanisms, also further contribute to conducive settings for exploitation.
The latter are particularly relevant in the context of informal sectors, which sex work falls under in all of the Greater Mekong Sub-region (GMS) countries. In fact, some or all aspects of commercial sex are criminalized across the GMS, with potentially severe repercussions for those involved in the sector.
Whilst the long-term objective may be to provide people with more opportunities and viable professional alternatives, the task in the meantime is to improve the conditions of the environments that workers find themselves in, including the sex industry. In doing so, human trafficking needs to be seen as the extreme end of a continuum of exploitation. There are various degrees of exploitative practices and all require addressing. This is partly because continued low-level violations of standards may contribute to an overall undermining of the conditions of decent work and enable more extreme forms to flourish.
Good practices in preventing and addressing human trafficking in commercial sex
Human trafficking is complex: exploitation as well as deceptive and coercive means such as manipulated debt or threats against family members are difficult to identify without the involvement of the individuals affected. Efforts to prevent and address trafficking for purposes of sexual exploitation hence benefit from an empowerment approach that views workers as agents of change.
Such a framework helps set standards of, and monitor, acceptable conditions of work in the sex industry. It supports workers to organize themselves, to transfer knowledge among peers about their rights as workers and human beings, and to report incidences of abuse and exploitation without fear of adverse repercussions. The latter requires mechanisms that are appropriate, reliable, and capacitated to respond including through procedures under civil and labour law. Given the array of problems that sex workers often experience when facing authorities, the involvement of civil society organizations is also critical.
The ‘Can Do’ bar in Chiang Mai, Thailand – owned and managed by a group of sex workers from EMPOWER, a civil society organization – is a good example of such an initiative. A community fund allows any sex worker to become part of the collective ownership of the business. The bar pays at or above minimum wage and has staff work a maximum of 8 hours per day with one day off per week, in accordance with Thai labour laws. There are no salary cuts or withholding of wages, and overtime work is voluntary and fully compensated. Staff are encouraged to form or join workers’ associations or unions, with disputes over working conditions being settled in labour courts. The bar also provides training and other opportunities for further education to its employees.
Sex worker organizations in countries elsewhere in the Greater Mekong Sub-region have also adopted empowerment approaches based on community mobilization and self-regulation, and have engaged in efforts to advocate for policy reform. Whilst punitive laws continue to affect such initiatives, positive examples in preventing and addressing human trafficking can be cited in environments where sex workers are involved in and drive responses. These assist in shifting the power balance in favour of those vulnerable to abuse and help change negative societal attitudes, which often provide a conducive environment for exploitation to flourish.
If relevant government agencies including law enforcement, social protection and labour as well as non-government stakeholders jointly supported an empowerment approach, trafficking for purposes of sexual exploitation may be addressed more effectively.
 The World Health Organization defines ‘sex work’ as “the provision of sexual services for money or goods”, ‘commercial sex’ as “the exchange of money or goods for sexual services” and ‘sex workers’ as the “women, men and transgendered people who receive money or goods in exchange for sexual services, and who consciously define those activities as income generating even if they do not consider sex work as their occupation”, with women, men and people including ‘sexually active adolescents’ but not children who have not reached the age of puberty.