Loading ...Can legalisation of the flesh trade prevent human trafficking or are we digging our own grave? Interview with Robyn Fudge, a former public prosecutor and senior state advocate, attached to the Office of the Director of Public Prosecutions, Gauteng.
One very common belief is that the legalisation of the sex or flesh trade, which in turn is the root cause of trafficking, will lead to strict regulation and a subsequent decrease in illicit and criminal activity.
Countries such as The Netherlands and Australia have legalised prostitution. What effect has this had on the expansion and consolidation of the flesh trade and how does this approach and policy differ from a country like Sweden — which you state has taken a hard line against facilitators, handlers, pimps and human traffickers?
Advocacy of legalisation or decriminalisation is usually based on the assumption that a regulated industry could contain the growth of the brothel and street trade, eliminate organised crime and end child prostitution and sex trafficking.
There is, however, absolutely no evidence that this policy achieves any of these objectives or makes things any better for the women and girls in prostitution. On the contrary, in countries such as The Netherlands, Australia and Germany where this has been tried, the exact opposite has been the case. These countries have all experienced a dramatic increase in legal and illegal prostitution, child prostitution and trafficking in persons for sexual purposes.
In Amsterdam, the mayor, Job Cohen, has admitted that the policy of legalisation has been a failure and has set about instituting a reversal. He conceded that organised crime dominated the industry in which sex trafficking, exploitation, drug abuse and money laundering were rife. Plans have been announced to buy out the brothel windows and replace them with upmarket boutiques. Permits have also been withdrawn from dozens of sex businesses, including the well-known Yab Yum brothel and Casa Rosso Theatre, which were accused of having links to organised crime.
Tolerance zones set up for street prostitution have also proved a failure. In 2003, the Tipplezone (pick-up area) that was established in 1995 for street prostitutes in central Amsterdam — and promoted as a way to control the problems associated with prostitution, such as drug dealing, trafficking and violence — was closed. The mayor admitted that it has become a haven for traffickers, drug dealers and unsafe for women. The Tipplezone in Rotterdam has been closed for similar reasons
In Australia, both the policy of legalisation (Victoria) and decriminalisation (NSW) of the sex trade have been followed. The consequences have been the same: an explosive increase in all facets of the sex industry. Legal brothels, child prostitution and trafficking have all increased and all parties concede that the illegal sex trade is out of control.
It was reported in the Sydney Morning Herald (December 2006) that almost four times the number of illegal as to legal sex premises were operating in Sydney alone. The Daily Telegraph (June 2006) similarly reported that, despite decriminalisation, the number of illegals had skyrocketed and that many operators brought women from Thailand, Korea and China.
In the State of Victoria in Australia, it has been estimated that there are three times more illegal than legal brothels. Many legal brothel owners reportedly have been involved in setting up and profiting from illegal brothels. “Customers” want more “exotic,” younger, cheaper women and those who can be induced not to use condoms. Victoria, the first state to legalise prostitution, has the highest rates of child prostitution of all the states and territories in Australia.
Street prostitution continues and in 2002, Victoria’s Attorney General was forced to admit that, though illegal, street prostitution continued as a “harmful” and “unacceptable” practice. Attempts to deal with the problem through the setting up of tolerance zones came to nothing due to resistance from residents. It appears that the situation remains unchanged.
Prostitution was decriminalised in New Zealand in 2003. It is still too soon to draw too many conclusions, but the signs are not looking good. Although little information is yet available, the main towns and cities such as Christchurch, Hamilton and Manakau have been experiencing problems in controlling the proliferation of brothels in suburban areas, street prostitution and the negative social consequences thereof. Opposition politicians have alleged that there has been an increase in street prostitution, child prostitution, foreign prostitutes and illegal brothels.
No clear information seems to exist regarding the extent of human trafficking. The Prostitution Reform Act further significantly reduces the ability of the police to enter and search brothels. Although coerced prostitution is unlawful in terms of the Act, this is not included as a ground for obtaining a warrant to search premises. Nor are the police allowed to obtain the identity of the holder of an operating certificate unless investigating a specific offence. It is difficult to see how these provisions really aid the combat of trafficking in persons.
It would clearly be inadvisable for South Africa to emulate any of the above examples. It is suggested that South Africa should rather emulate the approach adopted by Sweden where prostitution is regarded as gender-based violence and a tough stand is taken against the buyers, procurers and traffickers.
In 1999, at about the same time as The Netherlands opted for legalisation, Sweden introduced a policy of abolition where the focus would be on clamping down on the demand side and offering help to the women to exit prostitution. The purchase or attempted purchase of sexual services was for the first time criminalised.
Street prostitution has been reduced and, very importantly and significantly, a barrier was thrown up against trafficking. It has been estimated by the Swedish police that that the number persons trafficked into Sweden was about 400 to 600 a year, a fraction of the estimated number of women trafficked into her neighbours Finland, Denmark and Norway.
Although initially sceptical, the Swedish police in the 2003 NCID report (National Investigation Department) asserted that the Act relating to the purchase of sexual services had acted as a barrier against trafficking and traffickers establishing themselves in Sweden. Telephone intercepts revealed traffickers and pimps experiencing problems in finding purchasers and so shifting to more lucrative markets such as Norway and Denmark. The Norwegian Parliament made a decision last year to copy Sweden and it seems likely that this approach will be adopted by all the Scandinavian countries.
In introducing the Sexual Offences Bill to the portfolio committee, South Africa’s Deputy Minister of Justice and Constitutional Affairs Johnny de Lange remarked in relation to section 11 (purchase of sex acts) that this was the approach taken by the Scandinavian countries to combat trafficking.
What is your belief regarding the hinge of the human trafficking industry? The United Nations states that we have currently more than 27-million in servitude.
I have no idea how these figures are arrived at but clearly the numbers involved are significant and extremely worrying. To break it down a little further, the US Department of State estimates that between 600 000 and 800 000 people are trafficked annually within and across borders, and of these, approximately 80% are female and 50% under the age of 18. It is also estimated that this transnational trafficking in women and children takes place primarily for prostitution and other sexual exploitation. Although a proportion is trafficked for forced labour, in the case of women and girls this is often accompanied by physical and sexual abuse.
This global pattern appears to be mirrored in South Africa. In the United Nations Global Trafficking Report 2006 it was reported that transnational victims of trafficking to South Africa were mostly women and girls. The main purpose of the trafficking was sexual exploitation, but forced labour was also reported.
Research indicates that the trafficking appears to be controlled by organised criminal gangs from Bulgaria, Russia, Thailand, China and Nigeria. Other reports indicate that domestic trafficking for sexual exploitation of women and girls also appears to be happening on a significant scale.
Which countries are the primary “bargain bins” and why is this so?
The majority of trafficked persons appear to be women and children from developing countries and economies in transition, and the top destinations on the other hand are the wealthy, developed nations of predominantly the West and Japan. Research indicates that the overwhelming majority of those in the sex industries in Western Europe are foreign nationals — especially from the former Soviet bloc. In the first report produced by the UN in 2006 regarding the global patterns in human trafficking, the biggest source countries listed — not surprisingly — were predominantly Eastern European, Asia (China, Thailand) and Africa (Nigeria).
There have been rumours about certain NGOs, for example in Sudan, stealing kids through their humanitarian mandate. How easy is it for a humanitarian organisation to go in and shift people around? Is this a very unusual act?
I have no idea of the extent of NGO involvement in human trafficking, but there is no reason why one should automatically assume the bona fides of every NGO. A little healthy scepticism is probably in order. No doubt some NGOs fulfil a real need and do good work.
Some are, however, funded or founded by a source with a view to furthering a particular objective, laudable or not. To what degree, though, can one discount the influence brought to bear directly or indirectly on the stance taken with respect to particular issues, and how does it affect the integrity of the reporting and interpreting of information collected by these groups in the carrying out of their objectives?
For example, DKT International, an NGO involved in inter alia the distribution of condoms in developing countries, and operating in many countries, was founded by porn king Philip D Harvey, who launched one of the world’s largest mail-order pornography and sex-merchandise businesses. The organisation is pro the legalisation of prostitution and refused to sign a pledge that specified that groups must explicitly oppose prostitution and sex trafficking to qualify for USAid. DKT took USAid to court in 2005 over the withholding of funds for this refusing to make this pledge.
Could you expand a little more on the essence of the Bill and how it could and does affect the trafficking industry?
For the first time we now have provisions (sections 70 and 71) specifically criminalising trafficking for sexual purposes. The sections reflect the Palermo Protocol quite closely and, in essence, anybody who performs any act that contributes in any way at any stage of the trafficking process may now be pursued in terms of these provisions. This could include the placer of a misleading ad, for example, as well as the driver of transport vehicles — subject to the requisite evidence being adduced of course.
The demand for the sex of prostitution — without which there would be no point or profit in trafficking in persons — is also tackled through the criminalisation of the buyer of sexual acts in section 11. Note that a sexual act includes a sexual violation. If one looks at the definition of a sexual violation, it would appear that purchasers of various acts currently practised in strip clubs would fall within the ambit of section 11.
A trafficking victim will not stand trial for any offences committed as a direct result of being trafficked.
You stated in our emails: “I read a little out of interest and was shocked to find out the attitude taken by seemingly the whole of academia and NGOs. Maybe it’s my background in the trenches of criminal prosecutions, but these people seemed to be taking a completely ideological and somewhat detached from the real world of crime-and-grime approach. It might be a coincidence that most of the protagonists are middle/upper middle class, probably relatively privileged, South Africans, who do not feel personally threatened by the practice and are not really well acquainted with the criminal world.”
Let me illustrate by way of example: when perusing the submissions to Parliament regarding the Sexual Offences Amendment Bill, I was surprised to find that the NGO Coalition (comprises virtually all relevant NGOs) had asked that the provisions for transitional trafficking for sexual purposes be withdrawn pending the ultimate introduction of comprehensive trafficking legislation. The chairperson of the justice portfolio committee, Fatima Chohan Khota, also expressed complete puzzlement at this action.
The submission also seemed to broadly challenge the reality of sex trafficking and it was suggested that trafficking provisions only be considered when the matter of the criminalisation of prostitution was resolved. This submission was made shortly before the introduction of section 11 (purchase of a sexual act) into the Bill.
South Africa has been placed repeatedly on the tier-two watch list of the US Department of State TIP report. Trafficking of particularly Thai women to South Africa has long been documented (IOM, Carte Blanche exposé). Surely this is not in dispute, irrespective of the actual numbers involved? Why would their protection in the form of interim measures not be considered a priority? In a supplementary submission, the group asked that section 11 be removed. Could the desire to legalise prostitution be more important than the immediate protection of potential trafficking victims? Surely not?
In a submission to the SALRC with respect to the proposed comprehensive trafficking Bill put out for comment by the gender, health and justice research unit at UCT, a provision obliging various health professionals, social workers and so forth to report a belief that a person was a trafficking victim to the SAPS was rejected on the grounds that it could interfere with the agency of the trafficking victim to decide whether reporting their trafficking was best for them.
This kind of suggestion suggests a worrying lack of insight into the position a trafficking victim is in, and perhaps even the nature of organised crime itself. Is it properly understood that a trafficking victim is regarded as such precisely because the circumstances they find themselves in limit their ability to act, hence the need for intervention?
long time. good to see you blogging again
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