Gender and the Law Blog

Trauma as Inclusion

Raquel E. Aldana, Patrick Marius Koga, Thomas O’Donnell, Alea Skwara, and Caroline Perris have posted a forthcoming article, Trauma as Inclusion, on SSRN. The article is forthcoming in Summer 2022 in the Tennessee Law Review.  It "brings together a historian and law, public health, psychiatry, psychology, and neuroscience faculty and researchers to document how trauma is understood across disciplines and how it has developed in U.S. immigration law largely to exclude but increasingly to include migrants whose lives have been uprooted or otherwise impacted by borders." It describes, for example, how refugee and asylum law "largely fail to protect individuals and groups facing persecution by private actors, such as women and LGBTQIA+ individuals, even when private violence has become indistinguishable from state sponsored persecution." It then explores how the Violence Against Women Act has more potential for a model of "trauma as inclusion": 

Unfortunately, several obstacles, including evidentiary barriers impede the full potential of the VAWA self-petition process. Proving trauma for domestic violence victims is difficult, even in cases involving physical abuse, given the barriers to reporting. Moreover, when the alleged hardship is based on “extreme cruelty,” an immigrant’s narrative alone can be deemed insufficient to establish eligibility. For immigrants who can afford it, sometimes psychological evaluations can help document psychological trauma that is not otherwise documentable. However, even these types of evidence may not help overcome the Western clinical conceptualizations of trauma that undermine the lived experiences of more resilient women, especially when one considers the different ways that victims respond to trauma. Worse yet, these types of psychological evaluations can be used against immigrants to deny relief, such as when documented depression and suicidal thoughts trigger mental health grounds of inadmissibility.

Analyzing Social Norms as Applied to Child Sex Trafficking

Melissa Breger, Stemming the Tide: Social Norms and Child Sex Trafficking, 126 Dickinson L. Rev. 135 (2021)

Despite decades of attempts to eradicate the industry, child sex trafficking continues to flourish. Arguably, there is debate about whether adults willingly choose sex work, yet there are no arguments supporting the notion that children make any such choice. When children are bought and sold for sexual purposes, it is child sex trafficking.

Academic legal research has focused comprehensively on the identification of child victims and the prosecution of child traffickers, yet there has not been as salient a focus on reducing the market of buyers of trafficked children. It is the reduction of demand where theories of re-norming and social norms could be applied to the issue of child sex trafficking. By vitiating the notion that buying children for sex is in any way acceptable, the demand for child trafficking will diminish.

The Nordic model has had moderate success in stemming sex buyer demand, and I borrow from it to propose further minimizing the demand for children. The Nordic model sets forth an approach by which the buyers of sex are specifically penalized, while those who are themselves purchased are not punished.

This Article is the next segment in a more comprehensive series about applying social norms theories to decrease negative behavior. Other segments have explored decreasing intimate partner violence, reforming a toxic sports culture, minimizing a rape culture, and discouraging corporal punishment against children. This Article will specifically analyze social norms as they apply to child sex trafficking.

CFP Sex Trafficking, Opioids & Eradicating the Demand

The University of Kentucky Rosenberg College of Law is very pleased to host a day-long symposium entitled, “Selling Vulnerability: Sex Trafficking, Opioids, and Eradicating the Demand” on Friday, February 5, 2021. A detailed description of the symposium is provided below. We are hosting the symposium virtually via Zoom.   

Article Submissions:  

As part of our symposium, the Kentucky Law Journal (KLJ) is currently seeking articles to be published in an issue devoted to sex trafficking and opioids. Relevant topics may include, but are certainly not limited to, the use of drug dependency and manipulation to “coerce” sex trafficking victims; enhanced victim support services that include drug treatment; and recent efforts in and new ideas regarding sex trafficking law reform.  

We are interested in many different submissions, including submissions from practitioners.  

Submission Guidelines:  

  

Articles published by the KLJ average 15,000 - 25,000 words.  KLJ does not accept submissions from students at other law schools. Co-authorship is permissible. All authors please submit an updated curriculum vitae and/or resume.  

Deadlines:  

Please submit an abstract to KLJ. The final articles are due on December 15, 2020.   

Contact information:  

Please emails submissions and questions to [email protected] and please copy Associate Professor Blanche Cook at [email protected].  

Symposium Description:   

Our nation is experiencing a meteoric rise in opioid overdose. The sheer power of opioid dependency has left few untouched and many devastated in its wake.  Inextricably intertwined with opioid dependency is an equally epidemic rise in sex trafficking. Like no other point in its 5,000-year history, sex trafficking is on a sharp upsurge: The internet has expanded the insatiable demand for vulnerable human flesh. As the internet increases the scope of the flesh trade, opioid addiction adds to its sting. Millions are feeding their dependency through the selling of flesh.   

Sex trafficking exists conterminously with drug dependency because vulnerability is the lynchpin of exploitation. This conference, the first of its kind, will examine the converging and rising tides of sex trafficking and opioid addiction. This conference has three aims: Awareness, Advocacy, and Activism.  Using a panel of experts who have first-hand experience with the intertwined effects of sex trafficking and opioid addiction, this conference will increase the public awareness of the converging forces of dependency and vulnerability.  A second panel of advocates will address how the legal process can intervene in the demand for human flesh.  Finally, a third panel of activists will critique the current problems in the criminal justice system’s attempt to ameliorate the intertwined problem of drug dependency and sex trafficking through mass incarceration.  

President Signs Two Laws Addressing Violence Against Native American Women

Trump Signs 2 Laws Addressing Missing and Murdered Indigenous Women

President Donald Trump signed two bills into law Saturday night that will finally do something about a terrifying and largely invisible crisis in America: Hundreds of Indigenous women are simply disappearing or being murdered.

 

The first bill, Savanna’s Act, will help law enforcement better respond to a devastating situation in which nobody can say what, exactly, is going on. At least 506 Native women and girls have gone missing or been murdered in 71 U.S. cities, including more than 330 since 2010, according to a November 2018 report by Urban Indian Health Institute. And that’s likely a gross undercount given the limited or complete lack of data being collected by law enforcement agencies.

 

Ninety-five percent of these cases were never covered by the national media, and the circumstances surrounding many of these deaths and disappearances are still unknown.

 

Savanna’s Act, authored by Sen. Lisa Murkowski (R-Alaska), is as much an attempt to put attention on the issue as it is to understand the severity of it. The new law will boost coordination and data collection between tribal, local, state and federal law enforcement in cases involving missing and murdered Native women. It will require federal agencies to get recommendations from tribes on how to enhance the safety of Native women, and require new guidelines for responding to these cases, in consultation with tribes.

 

Lots of these disappearances and murders stem from domestic violence, sexual assault and sex trafficking. Eighty-four percent of Indigenous women experience violence in their lifetime, and in some tribal communities, Native women are murdered at rates that are 10 times the national average.***

 

The other bill Trump signed, the Not Invisible Act, would make the federal government step up its response to Indigenous women going missing, being murdered or being forced into sex trafficking.

Using Federal Human Trafficking Law to Redress Gender-Based Violence Including MeToo Claims

Julie Dahlstrom, Trafficking to the Rescue?, 54 UC Davis L. Rev. (forthcoming)
 

Since before the dawn of the #MeToo Movement, civil litigators have been confronted with imperfect legal responses to gender-based harms. Some have sought to envision and develop innovative legal strategies. One new, increasingly successful tactic has been the deployment of federal anti-trafficking law in certain cases of domestic violence and sexual assault. In 2017, for example, victims of sexual assault filed federal civil suits under the Trafficking Victims Protection Reauthorization Act (“TVPRA”) against Hollywood producer Harvey Weinstein. Plaintiffs argued that the alleged sexual assault conduct amounted to “commercial sex acts” and sex trafficking. Other plaintiffs’ lawyers have similarly invoked trafficking law against a range of defendants, such as fundamentalist leader Warren Jeffs, Olympic Taekwondo coach Jean Lopez, and well-known photographer Bruce Weber. These efforts have largely succeeded, as federal district courts signal broader judicial acceptance of such federal trafficking claims.

This Article traces federal human trafficking law from its origins to these recent innovative cases. It then considers how civil litigators are turning to human trafficking statutes to overcome decades-old systemic problems with legal responses to gender-based violence. The Article explores how the TVPRA offers unique, pragmatic advantages for plaintiffs. Yet, this trend involves risks, as the expanding deployment of trafficking statutes may lead to constitutional challenges, disproportionate criminal penalties, and confusion about the meaning of trafficking as a legal concept. This Article examines what these efforts signal about the future of human trafficking law as well as the field of gender-based violence.

Former Prostitutes Challenge UK Law Requiring Disclosure of Past Convictions

Former Prostitutes Launch High Court Challenge to UK Law

A group of former prostitutes have taken a groundbreaking legal challenge to the high court, arguing that government policy criminalises victims of abuse and trafficking.

 

The women argue they have been stigmatised by the existing law, which requires people convicted of crimes to disclose their past when applying for a range of jobs or volunteering activity after DBS (Disclosure and Barring Service) checks.

 

It is the first time the system of recording and disclosing convictions has been challenged on the grounds of gender discrimination, said Harriet Wistrich, the women’s solicitor.

 

The women argue that it is unlawful to record and disclose criminal convictions for soliciting offences, saying it is discriminatory and breaches their right to a private life. ***

 

 

Lawyers representing the women argue that they are victims of trafficking, and that the requirement to disclose past convictions is at odds with government anti-trafficking policy. “It is entirely outmoded that we are still penalising women for street prostitution offences, many of which happened many years ago,” said Wistrich. “It is out of sync with current understanding that those women are often victims of abuse rather than perpetrators of crime.

 

“The women in this case all exited prostitution many years ago but continue to be blighted. It is grotesquely unjust that these convictions are still following them around.”

Women Under Represented on Irish Juries in Serious Criminal Trials, Especially Rape Trials

Irish Times, Women Under Represented on Juries in Serious Criminal Trials: Gender Imbalance is Most Noticeable in Rape Trials

While it is over 40 years since women won the right to be included on jury selection panels, men continue to dominate most juries in serious criminal trials.

 

An analysis by The Irish Times of 200 trials in the Central Criminal Court, which deals almost exclusively with rape and murder, shows that men dominated the jury in 57 per cent of cases.

 

Women dominated the jury in only 17 per cent of cases, while there was an even six/six split between the genders in 26 per cent of cases.

 

The gender imbalance was most noticeable in rape trials, where 61 of 100 juries were dominated by men compared to only 13 dominated by women. To put it another way, 723 men sat on the juries compared to 477 women.

 

In murder cases male jurors were in the majority in 52 cases compared to 23 with female-majority juries.

 

Both the reasons and consequences of the gender imbalance in Irish juries remain unclear, mainly due to the secretive nature of jury selection and jury deliberation.

 

Many studies suggest women are more likely to judge female rape complainants harshly and to acquit men accused of rape. In 2009, Irish academics who studied 108 rape trials found that male-dominated juries had the highest conviction rate. There was not a single conviction in the 17 cases which had female-dominated juries.

Feminists' Role in Creating NY's New Human Trafficking Intervention Courts

Amy Cohen & Aya Gruber, Governance Feminism in New York's Alternative "Human Trafficking Intervention Courts"

In New York’s new Human Trafficking Intervention Courts (HTICs), mostly female defendants are prosecuted for prostitution-related offenses and then offered social services in lieu of more traditional criminal justice sentences. These alternative problem-solving courts represent a reconceptualization of the status of prostitution defendants in the New York criminal court system: formerly regarded as low priority, quality-of-life offenders, they are perceived by the HTICs as presumptive victims of gender-based violence. This chapter explores the role that feminists, holding a range of views on commercial sex, played in the creation of these new courts even as it argues that virtually no feminist position — liberal, abolitionist, sex worker — should condone the arrest of women for selling sex. It explores how some feminists embraced the courts as depoliticized providers of services while others made strategic decisions to work with the new courts despite clear ideological misgivings. As such, the chapter argues, the HTICs raise questions endemic to all governance feminism projects: when and why is it worth it to compromise feminist aims?

Co-author Amy Cohen also has a second article on the history of the New York prostitution courts. Trauma and the Welfare State: A Genealogy of Prostitution Courts in New York City, Texas L. Rev. (forthcoming).

At least since the early twentieth century, informal specialized prostitution courts have tried to double as social welfare agencies. For this reason, prostitution courts illustrate in particularly explicit ways how public welfare administration and criminal court administration share similar ideas and practices and how these ideas and practices reinvent themselves over time. The article traces three moments of prostitution court reform in New York City: the New York Women’s Court that opened in Manhattan in 1910, the Midtown Community Court that opened in Manhattan in 1993, and four new prostitution courts that opened in New York City in 2013. It examines how court reformers in each moment use informal procedure to promote social welfare, social control, and individual responsibility, and it ties each approach to changing conceptions of the American welfare state. Ultimately, the article argues that the genealogy of prostitution courts illuminates for the present how court reformers are using the language of trauma to negotiate the welfare logics of today.

See also Mae Quinn, Ann Moscowitz Kross and the Home Term Part: A Second Look at the Nation's First Criminal Domestic Violence Court, 41 Akron L.Rev. 733 (2008)

Tracking the Experience of Decriminalizing Prostitution in Rhode Island

Donna Hughes & Melanie Shapiro, Bibliography of Sources on Prostitution Decriminalization in Rhode Island

A bibliography of sources on the research we did on prostitution and sex trafficking and the advocacy work we did to end decriminalized prostitution. For 29 years prostitution was decriminalized in Rhode Island (if it occurred indoors). Sexual exploitation and violence against women and girls were integrated into economic development. The number of sex businesses grew rapidly and organized crime groups operated brothels and extorted money from adult entertainment businesses. Rhode Island became a destination for pimps, sex traffickers, and other violent criminals. The lack of laws impeded police from investigating serious crimes, including sex trafficking

Books: Sex Trafficking in the US

Andrea J. Nichols, Sex Trafficking in the United States (Columbia Press 2016)

Sex Trafficking in the United States is a unique exploration of the underlying dynamics of sex trafficking. This comprehensive volume examines the common risk factors for those who become victims, and the barriers they face when they try to leave. It also looks at how and why sex traffickers enter the industry. A chapter on buyers presents what we know about their motivations, the prevalence of bought sex, and criminal justice policies that target them. Sex Trafficking in the United States describes how the justice system, activists, and individuals can engage in advocating for victims of sex trafficking. It also offers recommendations for practice and policy and suggestions for cultural change.

 

Andrea J. Nichols approaches sex-trafficking-related theories, research, policies, and practice from neoliberal, abolitionist, feminist, criminological, and sociological perspectives. She confronts competing views of the relationship between pornography, prostitution, and sex trafficking, as well as the contribution of weak social institutions and safety nets to the spread of sex trafficking. She also explores the link between identity-based oppression, societal marginalization, and the risk of victimization. She clearly accounts for the role of race, ethnicity, immigrant status, LGBTQ identities, age, sex, and intellectual disability in heightening the risk of trafficking and how social services and the criminal justice and healthcare systems can best respond. This textbook is essential for understanding the mechanics of a pervasive industry and curbing its spread among at-risk populations.

 

Please visit our supplemental materials page (https://cup.columbia.edu/extras/supplement/sex-trafficking-united-states) to find teaching aids, including PowerPoints, access to a test bank, and a sample syllabus

Problems with the New Human Trafficking Intervention Courts

Aya Gruber (Colorado), Amy Cohen (Ohio State) & Kate Mogulescu (Legal Aid),  Penal Welfare and the New Human Trafficking Intervention Courts, Florida L.Rev. (forthcoming)

Abstract:     

In the fall of 2013, New York State’s chief judge, Jonathan Lippman, announced a “revolutionary” statewide initiative to create and implement Human Trafficking Intervention Courts (HTICs). The initiative occurred amidst a burgeoning consensus that prostitution is human trafficking and women who engage in prostitution are largely victims of exploitation and violence. Given the HTICs’ ambition to, in Lippman’s words, “eradicate the epidemic of human trafficking” and the convergent view of prostitution as trafficking, one might think that the HTICs are courts that prosecute traffickers, where victim-witnesses enjoy special protections. In fact, the HTICs are criminal diversion courts where mostly female defendants are prosecuted for prostitution offenses, but offered mandated services in lieu of criminal conviction and jail. The HTICs are thus a puzzle. Why have so many commentators heralded them as the model approach to prostitution/trafficking when they involve the arrest, prosecution, and even incarceration of prostitution defendants, who are presumed to be victims? A key piece of this puzzle is a phenomenon we call “penal welfare,” that is, a growing practice of using criminal courts to provision social services and benefits. In an era in which “mass incarceration” is a familiar term and tough-on-crime and broken windows ideologies are falling into disfavor, penal welfare enables entrenched institutions of criminal law to continue to function, despite a growing crisis in public confidence. Based on a qualitative empirical study of the HTICs, we argue that precisely because of their welfarist bent, the courts may sustain arrests and prosecutions of the presumptively victimized women they seek to protect, stunt the development of alternate forms of assistance and resources, and reinforce stigmatizing ideologies and discourses.

 

New Books: Sex Crimes and Trafficking

Alissa Ackerman & Rich Furman, Sex Crimes: Transnational Problems and Global Perspectives (Columbia U. Press)

• This book is the first to investigate all aspects of sexual crimes and the policy and management initiatives developed to address them from a transnational, global perspective. Introducing an array of tools for reducing the prevalence and consequences of sex crimes, this volume brings together leading scholars in criminology, criminal justice, social work, and law to discuss topics ranging from sex trafficking and sex tourism to pornography, cyberstalking, and sexual abuse in the military and the Catholic church. Case studies track the reporting of these crimes, the methods used to interview victims and perpetrators, and the policies enacted to punish those involved.                                                                                     
• Listen to an interview with author Alissa Ackerman on the subject: http://www.againstthegrain.org/program/1191/mon-72715-sex-crimes-and-masculiniti

Alexandra Lutnick, Domestic Minor Sex Trafficking (Columbia U. Press) 

• “This book is a must for anyone interested in youth involved in the sex trades or sex-trafficking issues. The research and discussions offer a glimpse into the nuanced and complicated realities that facilitate youth involvement in sex trades. Lutnick's scholarship helps us to think beyond the victim/villain binary by exposing the various ways in which family, friends, policy, and the state are accountable to their circumstances. The book offers timely and useful strength-based strategies that also attend to issues of oppression and justice.”
  
  
  
  

UAE imprisoning rape victims under extramarital sex laws – investigation

From the Guardian UK: 

Hundreds of women, some of them pregnant or domestic servants who are victims of rape, are being imprisoned in the United Arab Emirates every year under laws that outlaw consensual sex outside marriage, according to a BBC Arabic investigation.

Secret footage obtained by BBC Arabic show pregnant women shackled in chains walking into a courtrooms where laws prohibiting “Zina” – or sex outside marriage – could mean sentences of months to years in prison and flogging.

“Because the UAE authorities have not clarified what they mean by indecency, the judges can use their culture and customs and Sharia ultimately to broaden out that definition and convict people for illicit sexual relations or even acts of public affection,” said Rothna Begum, women’s rights researcher at Human Rights Watch in London.

While both men and women could in theory be imprisoned for having sex outside marriage, the investigation – which will air at the opening of BBC Arabic festival on 31 October – found that in reality pregnancy is often used as proof of the “crime”, with domestic female migrant workers – numbering about 150,000 in the UAE – left most vulnerable.

Punishing Young Girls for Prostitution to Protect Them

Cynthia Goode (Brooklyn), Punishment as Protection, Houston Law Review, forthcoming

Abstract:     

Each year, thousands of girls are prosecuted, and often incarcerated, for prostitution. Indeed, prostitution is the only crime for which girls are the majority of juveniles arrested. Why are girls below the age of consent victims of statutory rape when they have sex, yet become offenders if they are paid?

 

This differential treatment cannot be justified on retributive or consequential grounds, as prostituted girls inflict only self-harm, usually deemed illegitimate grounds for criminal sanctions, and punishment does not deter their conduct. Criminal sanctions are not only unjustified, but counter-productive. They result in great harms to the individual girls and have not decreased the scope of juvenile prostitution. In short, the cure is worse than the ill.

 

This Article examines the persistence of this criminalization model and argues that the protectionist rationale offered is pretextual, cover for moralism. Entering ‘the life’ at an average age of thirteen, most of these girls have experienced abuse or family trauma. They are also victims under trafficking and statutory rape laws. Nonetheless, studies report that police see only one in five as a victim. The men who purchase girls for sex are rarely prosecuted. Using a historical lens, this Article argues that this punitive paternalism is the current incarnation of a long trajectory of regulating adolescent female sexuality via criminalization.

 

This story of regulation as punishment also offers broader insights into the dynamics and dysfunctions of the criminal law. The high costs of punishment render criminal sanctions an untenable instrument for addressing self-harm or enforcing sexual norms. By punishing the victims and failing to pursue the real offenders, this institutional approach ignores, even normalizes, the commercial sexual exploitation of children. This Article concludes by considering three alternative frameworks for addressing this widespread social problem.

 

Amnesty International Votes to Decriminalize Prostitution

Slate, Amnesty International Will Call for Decriminalizing All Prostitution

Amnesty International will support the decriminalization of all elements of prostitution—including paying for sex and facilitating sex-for-money transactions—after a vote of some 400 delegates at a meeting in Dublin, the New York Times reports:

 

The proposal about prostitution provoked an aggressive lobbying campaign by international groups opposed to sparing buyers and pimps from penalties. Competing petitions were organized by women’s groups and celebrities— including former President Jimmy Carter, who issued a letter on Monday — appealing to the group to maintain penalties for buyers and to “stay true to its mission.”

Countries including Germany, the Netherlands, and New Zealand already have the kind of highly tolerant policies Amnesty will now advocate for, the BBC says, while the Times notes that Sweden's and Norway's laws fall somewhere between prohibition and decriminalization; in those Scandinavian countries, prostitution itself is legal but paying for sex can be punished with "heavy fines and prison terms."

The proposed language of the new Amnesty policy cautions that sex-work practices "that involve coercion, deception, threats, or violence" should continue to be considered unacceptable before asserting that "the available evidence indicates that the criminalisation of sex work is more likely than not to reinforce discrimination against those who engage in these activities, to increase the likelihood that they will be subjected to harassment and violence, including ill-treatment at the hands of police, and to lead to the denial of due process and the exclusion from public benefits such as health services, housing, education, and immigration status."

$3200 for a Bride

 

Chinese men in rural villages are paying $3200 to families (parents, usually) to sell their daughters in rural Vietnam for marriage. 

Their marriages were arranged for cash, but some of the Vietnamese women who have found unlikely Prince Charmings in remote Chinese villages say they are living happily ever after.

 "Economically, life is better here in China," said Nguyen Thi Hang, one of around two dozen women from Vietnam who have married men in Linqi.

On the other hand, some women, finding themselves in terrible marriages, have a tough time leaving.  

Prostitution Laws: 7 voices

From the CBC (Canada)..... Among the voices, one worker with victims of human trafficking said: 

"I can't walk into a group home in Canada where [there aren't] children, and these are 14-, 15-, 16-year-old children, whom are being recruited out of there by low-level, small organized gangs and things like this. And in fact these girls are now going in using friending tactics. To go in and get their friends to help them know, 'oh, you can just make a little bit of extra money, you can do this, do that, it's not so bad,'" she said.

"I'm seeing younger and younger persons entering the sex trade."