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U.S.

Anti-Trafficking Laws & Carceral Politics


Funding law enforcement, border controls, militarized
humanitarianism, and the monitoring of marginalized
populations by invoking moral panic in legislation.

For the Toronto Migrant Sex Worker Justice Forum, 5/12/2015


By panelist Kate Zen

Source Documents

1. Soderlund, Gretchen. Running from the Rescuers: New U.S. Crusades


Against Sex Trafficking and the Rhetoric of Abolition. NWSA Journal 17:3
(2005): 64-87.
2. Lui, Mary Ting Yi. Saving Young Girls From Chinatown: White Slavery and
Women Suffrage, 1910-1920. Journal of the History of Sexuality (2009).
3. Gulati, Girish J. Representing Trafficking: Media in the United States, Great
Britain, and Canada. In From Human Trafficking to Human Rights, edited by
Alison Brysk and Austin Choi-Fitzpatrick. Philadelphia: University of
Pennsylvania Press, 2012. 74-111.
4. Brysk, Alison. Rethinking Trafficking: Human Rights and Private Wrongs. In
From Human Trafficking to Human Rights, edited by Alison Brysk and Austin
Choi-Fitzpatrick. Philadelphia: University of Pennsylvania Press, 2012. 113-
132.
5. Bernstein, Elizabeth. Militarized Humanitarianism Meets Carceral
Feminism: The Politics of Sex, Rights, and Freedom in Contemporary
Antitrafficking Campaigns. Signs: Journal of Women in Culture and Society
36:1 (2010)
6. Red Umbrella Project. Criminal, Victim, or Worker: The Effects of New
Yorks Human Trafficking Intervention Courts On Adults Charged with
Prostitution-Related Offenses. October, 2014.
7. Zen, Kate. The JVTA: Not Just Bad for Trafficking Victims. Tits and Sass.
April, 24, 2015.

Additional Readings

8. Kim, Kathleen and Grace Chang. Reconceptualizing Approaches to Human


Trafficking: New Directions and Perspectives from the Field(s). 3 Stan. J.C.R.
& C.L. 317.

9. Abrams, Kerry. Polygamy, Prostitution, and the Federalization of
Immigration Law. Columbia Law Review 105:3 (2005).

10. Chuang, Janie. Beyond a Snapshot: Preventing Human Trafficking in the
Global Economy. 13 Ind. J. Global Legal Stud. 137 (2006).

11. Ahmed, Aziza and Meena Seshu. We Have the Right Not to be Rescued:
When Anti-Trafficking Programmes Undermine the Health and Well-Being of
Sex Workers. Anti-Trafficking Review (2012).

12. Halley, Janet, Prabha Kotiswaran, Hila Shamir, and Chantal Thomas. From
the International to the Local in Feminist Legal Responses to Rape,
Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary
Governance Feminism. Harvard Journal of Law & Gender 29 (2006).

13. Sanghera, Jyothi. Unpacking the Trafficking Discourse. In Trafficking and
Prostitution Reconsidered: New Perspectives On Migration, Sex Work, and
Human Rights, edited by Kamala Kempadoo, Jyothi Sanghera, and Bandana
Pattanaik. Boulder: Paradigm Publishers, 2011.



A Few Books
14. Kempadoo, Kamala, et al. Trafficking and Prostitution Reconsidered: New
Perspectives On Migration, Sex Work, and Human Rights. Boulder: Paradigm
Pubishers, 2011.

15. Soderlund, Grechen. Sex Trafficking, Scandal, and the Transformation of
Journalism, 1885-1917. Chicago: University of Chicago Press, 2013.

16. Kapur, Ratna. Migrant Women and the Legal Politics of Anti-Trafficking.
Available for free download here:
http://www.academia.edu/3423199/Migrant_women_and_the_legal_politics
_of_anti-trafficking_interventions

Running from the Rescuers: New U.S. Crusades


Against Sex Trafficking and the Rhetoric of Abolition
GRETCHEN SODERLUND
This article analyzes recent developments in U.S. anti-sex trafficking
rhetoric and practices. In particular, it traces how pre-9/11 abolitionist
legal frameworks have been redeployed in the context of regime change
from the Clinton to Bush administrations. In the current political context, combating the traffic in women has become a common denominator
political issue, uniting people across the political and religious spectrum
against a seemingly indisputable act of oppression and exploitation.
However, this essay argues that feminists should be the fi rst to interrogate and critique the premises underlying many claims about global
sex trafficking, as well as recent U.S.-based efforts to rescue prostitutes.
It places the current raid-and-rehabilitation method of curbing sex trafficking within the broader context of Bush administration and conservative religious approaches to dealing with gender and sexuality on the
international scene.
Keywords: sex trafficking / social movements / prostitution / journalism /
violence against women / evangelism
Our job under this statute is to end trafficking. If America fails to take the
lead in rescuing the victims, theres no other nation that will.
John R. Miller, Director of the State Departments Office to
Monitor and Combat Trafficking in Persons (quoted in Morse 2003)
[Sex trafficking] just jumped off the pages of the newspaper.
Richard Cizik, National Association of Evangelicals
(quoted in Shapiro 2004)

Two years ago an undercover team comprised of an MSNBC Dateline


producer and a sex-trafficking investigator scouted the streets of Phnom
Penh, Cambodia, for evidence of child prostitution. After inquiring among
locals and an unwitting American doctor who thought he had met a kindred sex tourist, a Cambodian boy finally led them to an impoverished
area just outside Phnom Penh where they found a rickety house teeming
with children. When one small girl offered them oral sex for 30 U.S. dollars, it became apparent that what appeared to be an extended family or
some kind of makeshift orphanage was in fact a brothel. The team had
learned earlier that police receive kickbacks from brothel managers in
return for not interfering with the sex rackets operating in and around
the city. One police officer even guaranteed to protect the investigators2005 NWSA Journal, Vol. 17 No. 3 (Fall)

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65

turned-sex predators from arrest for 150 dollars. In light of widespread


corruption among the police, the undercover team enlisted Gary Haugen
of International Justice Mission (IJM), a Christian human rights group, to
help them free the young girls being sold for sex in this brothel.
With the consent of the Cambodian government, MSNBC and IJM put
together a self-styled American posse to fill the vacuum left by local law
enforcement. In their role as surrogate police, the group conducted a dramatic raid on the house. Guns were drawn, sirens blared, children wailed,
and panicked men and women ran in every direction. The IJM investigator
rounded up as many children as possible in the midst of the ensuing chaos.
A listless crowd assembled outside the house, watching as the drama
spilled onto the street. Raids were conducted throughout Svay Pak that
day, leading to the capture of 37 women and girls, the arrest of madams
and pimps, and the barricading of many of the shantytowns brothels. At
the days end, the women and children under the investigators charge
were taken to a safe house. They would be tabulated and referred to as
37 victims rescued in subsequent International Justice Mission (IJM)
accounts of the raid (IJM 2004). The whole event was documented by a
hidden digital camera and brought to U.S. television audiences in a January 2004 Dateline episode called Children for Sale. Over the last year,
this MSNBC/IJM tape has been widely cited as proof of an insidious global
sex trade that often preys on small children. It serves by extension as an
implicit endorsement of the tactics used by newfangled abolitionists in
their quest to free the worlds sex slaves.

Running from Rescue


In the current context, no practice or set of relationships is referred to
more often as slavery than that of sex trafficking. It is commonplace to
hear trafficking referred to as modern day slavery or virtual sexual
slavery by activists, nongovernmental organizations (NGOs), and journalists. Like Progressive era anti-prostitution social reform movements,
early 21st century anti-trafficking movements draw on the rhetoric of abolition to underscore the urgency of their cause. Central to such rhetoric is
the construction of captivity and freedom as diametrically opposed states
of existence. Yet in current sites and practices of abolitionist intervention
the line between rescuers and captors has become increasingly blurry.
While the stories abolitionists tell about their interventions tend to focus
on the moment of the raid and the successful delivery of the rescued slaves
to safe houses, events that occur in the aftermath of raids often belie the
claim that all of the rescued women are sex slaves held captive and against
their will in brothels. Reports from sex worker rights organizations and
testimonials from individuals who manage shelters suggest that rescue

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escapes are exceedingly common throughout India and Southeast Asia.


It appears that while some women use brothel raids and closures as an
opportunity to leave the sex industry, others perceive the rehabilitation
process itself as a punitive form of imprisonment thereby complicating
the captivity/freedom binary asserted by abolitionists.
Journalist Maggie Joness interviews with safe house managers indicate
that shelter escapes are commonplace in areas where anti-trafficking
groups are currently targeting their efforts (2003). The manager of the
Phnom Penh home that took in the 37 prostitutes after the Datelineinitiated raids reported to Jones that at least 40 percent of the women and
girls taken to his shelter escape and return to work in Svay Paks brothels.
Indeed, six of the teens taken by MSNBC/IJM had run away from the home
within a week of the televised busts. When Phil Marshall of the United
Nations Project on Human Trafficking in Southeast Asias Mekong Region
was asked by Jones what he thought of current rehabilitation strategies,
he said he had never seen an issue where there is less interest in hearing
from those who are most affected by it (Jones 2003,1). In 2003, Empower,1
a sex workers advocacy program, issued a report documenting a brothel
raid in Chiang Mai, Thailand conducted by International Justice Mission
in which several of the 28 arrested (or rescued, in abolitionist parlance)
Burmese women escaped from a local institution in the first 24 hours.
According to Empower, the raidconducted ostensibly for humanitarian
purposestook on many of the same features as a criminal arrest:
As soon as they had their mobile phones returned [the] women contacted
Empower. They are only permitted to use their phones for a short time each
evening and must hide in the bathroom to take calls outside that time. They
report that they have been subjected to continual interrogation and coercion
by Trafcord [an anti-trafficking NGO formed in 2002 with U.S. fi nancial support]. Women understand that if they continue to maintain that they want to
remain in Thailand and return to work that they will be held in the Public
Welfare Boys Home or [a] similar institution until they recant. Similarly, they
understand that refusing to be witnesses against their traffickers will further
delay their release. (Empower 2003)

By the end of the month, more than half of the women had escaped from
the shelter. What does it mean that so-called sex slaves often thwart
rescue attempts? Is it intellectually and ethically responsible to call every
instance of a practice slavery when many women involved demonstratively reject the process of protection and rehabilitation, and when they
escape from supposed rescuers who aim to force them out of a life of
prostitution (captivity) and into a life of factory work or employment
in the low-paying service sector (freedom)?
This article analyzes recent developments in U.S. anti-sex trafficking
rhetoric and practices. It traces how legal frameworks to combat trafficking

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67

have been redeployed in the context of regime change from the Clinton
to Bush administrations. At the time of writing, the United States is
fighting two concurrent wars: one a declared war in Afghanistan against
the Taliban and the other an illegitimate occupation of Iraq committed
under false pretenses. In such a context, combating the traffic in women
has become a common denominator political issue, uniting people across
the political and religious spectrum against a seemingly indisputable act
of oppression and exploitation. It is commonly assumed that only the
most callous would criticize efforts to free the worlds sex slaves from
the clutches of organized and brutal trafficking networks. Yet I hope to
demonstrate here that those who seek a more humane and equitable world
should in fact be the first to interrogate and critique the premises underlying many claims about global sex trafficking, as well as the U.S.-based
efforts to free sex slaves justified by these claims.
This analysis focuses on one increasingly influential node within a
complex and diverse transnational movement characterized by activism
and policy creation at every level. While its scope is limited to the U.S.
context, anti-trafficking and anti-prostitution campaigns are by no means
unique to this country. Like other social movements, efforts to regulate
commercial sex possess different histories, meanings, and political agendas that are linked to the distinct national and local contexts in which
they emerged (Gerull and Halstead 1992; Kuo 2002; Outshoorn 2004;
Pearson 2002), even as current policy implementation on the national
level is often deeply informed by and becomes the object of transnational
debates and global activism (Bernstein 2005/in press; Gal 2003; Keck and
Sikkink 1998; Kempadoo and Doezema 1998).
The United Nations (UN) is the largest global regulatory institution
to declare global sex trafficking a violation of womens human rights.
However, in the last three years the United States has positioned itself
as an equally significant force in the anti-trafficking arena. Combating
sex slavery has become a key Bush administration priority and its most
championed humanitarian cause. The Department of Justice under John
Ashcroft has spent an average of 100 million dollars a year to fight trafficking domestically and internationally, a sum that overshadows any
other individual nations contributions to similar efforts.2 The current
administrations attempt to assert global moral leadership on this issue
by staging interventions in any country it deems weak on trafficking sets
it apart from other countries. In what follows I explore the genesis and
hidden political dimensions of current U.S.-based anti-sex trafficking initiatives. I trace the process through which sex trafficking came to occupy
its current position in the Bush administrations pantheon of international
causes by examining how social movements and protectionist media discourses have produced sex slavery as an object worthy of governmental
intervention.

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The Return of Raid and Rehabilitation


Scenes of Anglo men raiding brothels in Cambodia, India, Thailand, and
other developing nations have become increasingly common since faithbased human rights groups applied pressure on the Bush administration
to more vigorously enforce the 2000 Trafficking Victims Protection Act
(TVPA). Passed by Congress and signed into law by President Clinton, this
Act was the product of a tenuous alliance between evangelical Christian
groups and contemporary secular feminist anti-trafficking crusaders.
Religious conservatives, particularly evangelical Christians, had seized
on the issue of sex slavery in the late 1990s in a self-conscious effort
to expand their base and political power through the vehicle of human
rights (Hertzke 2004; Shapiro 2004). They were joined by such feminist
organizations as Equality Now and the Protection Project which aligned
themselves with the faith-based groups in the name of saving the worlds
women. Laura Lederer, editor of the famous Take Back the Night (1980)
collection and a current State Department appointee, functioned as a
major link between feminists and evangelical organizations. In defense of
this alliance, Lederer stated that religious organizations had introduced
a fresh perspective and biblical mandate to the womens movement.
Womens groups dont understand that the partnership on this issue
has strengthened them, because they would not be getting attention
internationally otherwise (quoted in Crago 2003).
Measures that couple Christian-based forms of rehabilitation with
traditional law-enforcement-style brothel raids have emerged as the dominant institutional means through which U.S. organizations now interface
with sex workers domestically and internationally. Efforts along these
lines have been enabled and amply rewarded by the Bush administration
in the wake of the 9/11 attacks, in part because the feminized war against
trafficking functions to give a human face to the war against terrorism
while bolstering Bushs popularity among his base by offering their organizations lucrative opportunities to spread their variant of Christianity
internationally. Indeed, in the last three years, groups affiliated with this
coalition have ascended to the top of the anti-trafficking milieu, gained
control of most federal anti-trafficking funds, and become the most prominent media and policy spokespeople on the topic. In light of this reallocation of resources and shifting discourse about trafficking, it appears
that organizations critical of state-sanctioned law-and-order campaigns
against commercial sex workers are emerging as the losers in the battle to
define such phenomena as trafficking and prostitution and to implement
programs that they feel best respond to both domestic and migrating sex
workers needs. How did we arrive at this point? How did a faith-based
and feminist coalition succeed in mobilizing governmental and public

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support for a U.S.-led international campaign against sex trafficking? How


have discourses about the traffic in women, which for many of us are a
phenomenon we only know of secondhand, circulated in the context of
U.S.-based institutions? What role did journalism and news media play in
the proliferation of these discourses?
At various historical moments, victims of sex trafficking have commanded sufficient public attention that key state institutions have mobilized resources on their behalf. The most recent period of intensified
attention to international sex-trafficking began in the mid-1980s and
became visible in two interconnected arenas: in a broad-based campaign
to introduce womens sexual and reproductive rights into traditional
human rights doctrine and in media attention to the plight of sex trafficking victims. Activist and journalistic discourses have influenced each
others way of understanding and making claims about sex trafficking.
The strategies womens human rights advocates used to advance their
agenda resonated with a set of conventionalized journalistic images and
associations that gathered around the traffic in women as early as the
1880s. The convergence of these two discourses played a role in galvanizing legislative and public support for government-sponsored campaigns
to end global sex slavery.
At the intersection of gender, human rights, and foreign policy, no pre9/11 issue was as prominent or contentious as sex trafficking. The issue
became a priority of the United Nations in the 1990s when a diverse set
of activists organized to bring gender and sexuality into the purview of
traditional human rights doctrine (Bunch 1990; Wijers and Lap-Chew
1997; Pearson 2002; Singh 2003). This coalition was characterized by
a unity of purpose over bringing concerns specific to womenincluding abuses not directly attributable to state actors like domestic violenceinto the broader fold of human rights (Keck and Sikkink 1998).
The womens rights campaign ultimately coalesced around the notion of
violence against women, concentrating particularly on abuses suffered by
third-world women. For some advocates, the adoption of violence against
women as the focal point of the campaign derived from a deep-seated
conviction that womens exposure to multiple forms of physical harm
was the most pressing problem for human rights in the late twentieth
century. For others, violence against women appeared as the most exigent approach toward gaining recognition from international bodies. In
her analysis of the 1990s movement, Alice Miller explains that sexual
violence was effective in this cause because it seemed to provide a means
to make the gender-specific content of the violence visible to key human
rights bodies and actors (2004, 18). Activist strategies centered around
the victim subjectoften embodied in personal testimonials from the
most abject sufferersare not only more likely to draw governmental
and media attention to a cause, but also serve as a point of commonality

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from which women of different cultural and social contexts can speak
(Kapur 2002).
Violence against women dominated the campaign for womens rights
at such international conferences as the 1993 Vienna World Conference
on Human Rights and the 1995 Beijing Conference on Women. Within
this already narrowed focus, sex trafficking and prostitution surfaced as
the most egregious form of violence against women imaginable, and thus
trafficking emerged as the centerpiece of the campaign. However, despite
its high profile, sex trafficking proved to be a highly controversial issue
among feminists and human rights activists. If debates surrounding
pornography exposed significant political fault lines among feminists in
the 1980s, controversies over sex trafficking served that function in the
1990s. Many activists utilizing a violence-against-women framework in
their campaign for womens rights were uncomfortable about the framing
of sex slavery as the lynchpin of womens oppression. Activists who saw
campaigns against sex trafficking as a step on the path toward eradicating all forms of sexual commerce clashed with those who viewed forced
trafficking as an exploitative practice that could encompass but was
ultimately distinct from the commercial sex act itself.
As the trafficking debates raged, the two sides further developed
their positions on the issue. While the former perspective adhered to a
strict abolitionist model considering all prostitution sex slavery and
thus by definition violence against women, the latter camp could itself
be divided into those who believed forced sex trafficking was a worthy
object of political intervention and those who felt intensive campaigns
against trafficking necessarily undermined efforts to secure sex worker
rights (Doezema 1998; Kempadoo and Doezema 1998). Groups like Coalition Against Trafficking in Women (CATW) argued that trafficking was
a unique and particularly abhorrent sexual violation of mainly female
victims (CATW-Asia Pacific 1996; Barry 1979; Raymond and Hughes
2001). Other groups, particularly the Global Alliance Against Trafficking in Women (GAATW) and the Network of Sex Work Projects (NSWP)
argued that the phenomenon rested along a continuum of forced migrant
labor (Kapur 2003; Kempadoo and Doezema 1998; Saunders and Soderlund
2003; Ulcarer 1999; Wijers and Lap-Chew 1997). For some activists the
trafficking of women into the sex industry is morally wrong and exploitative because of its association with commercial sex, while for others
forced prostitution is inseparable from global inequities of capital and
labor that leave women in the global economy with few viable options
aside from sweatshop labor or the typically more lucrative sex industry
work. From this latter perspective, an obsessive focus on sex trafficking
ultimately distracts from drawing connections between gendered poverty and forced prostitution and presumes a moralistic approach that is
unlikely to consider poverty, hunger, and low wages as equally pressing

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forms of violence against women. Subtle differences in the defi nition


of trafficking, its causes, and effects, lead to decidedly different institutional responses to these phenomena, as exemplified by recent policy
developments in Sweden and the Netherlands that have reshaped the
social organization of prostitution in these countries. However, Elizabeth
Bernsteins analysis of Sweden and the Netherlands divergent regulatory
approaches to commercial sex suggests that both policiescriminalization and legalizationhave strikingly similar effects on migrating sex
workers (2005/in press).
Increased attention to trafficking in the news media may provide a clue
to the puzzle as to why, of the many shapes gendered violence may take,
sex trafficking topped the list in human rights and formal governmental
discourse. By the late 1980s, stories about Latin American and Asian
women illegally trafficked into Western Europe to work in brothels began
to proliferate in the U.S. news media. The collapse of communism in Eastern Bloc countries intensified the focus on trafficking as stories of Eastern
Europeans sold into prostitution in Western Europe, the United States,
and parts of the Middle East circulated widely. It is likely such stories
reflected a visible increase in the number of women migrating to work in
distant sectors of the sex industry, although as Kamala Kempadoo points
out, globalization in the sex trade is by no means a new phenomenon
(2003). While the early stories focused on the movement of women from
one country to another for the purposes of prostitution, in recent years
trafficking stories have increasingly focused on the rural-to-urban movement of Asian women and girls allegedly lured, coerced, or kidnapped by
traffickers and forced into prostitution. The focus also has shifted to the
trafficking of foreign women and children into the United States. Whether
or not stories of modern-day sexual slavery represented a real increase
in the traffic in women, they also constituted prurient and cautionary
tales of women unmoored from family contexts. As such, these stories
are frequently selected by journalists because of their sensationalistic
qualities rather than their status as exemplary stories of women in the
global economy.

The Campaign for Womens Human Rights


Despite the resilience of the sex-slavery framework, narratives that resist
and complicate the basic trafficking story emerged in the second half
of the twentieth century. The most vocal challenges to the underlying
assumptions of trafficking discourse were usually tied to autonomous
sex worker rights movements, which were gaining institutional traction in the United States in the 1990s in part through their work to curb
the spread of HIV/AIDS among certain at-risk sex worker populations

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(Saunders 2004). Such groups emphasized harm reduction as opposed to


abolition and developed around the goals of unionizing prostitutes, supplying commercial sex workers with condoms, instructing them in safe
sex, providing HIV counseling and legal services, and working to end
police harassment, brutality, and extortion through the decriminalization of the trade (Overs and Longo 1997). Underlying such efforts was an
understanding of commercial sex and sex work that avoided victimization
frameworks, which so often wrest autonomy from women and places it in
the hands of states configured as masculine protectors.
In 1998 the UN and the United States appeared to be on the verge of
taking formal positions on trafficking after nearly a decade of anti-trafficking activism, media reports, and womens human rights campaigns
had put the issue on the international and domestic policy agendas. Up to
this point, the crusade against sex trafficking within the larger womens
human rights movement had largely been spearheaded by a collection of
feminist organizations, most notably the Coalition Against Trafficking
in Women (CATW) whose call to create trafficking laws broad enough
to encompass all acts of prostitution incited the debates between antitrafficking feminists and sex workers rights proponents. These oftenfractious interchanges generated competing claims about the nature
of the sexual contract, where (and in whom) power resides in the commercial sex exchange, and what the appropriate regulatory response is to
prostitution.
In light of recent developments in combating trafficking, the 1990s
trafficking debates, carried out in secular academic and policy contexts,
almost seem quaint, to lift an adjective from Attorney General Alberto
Gonzales (2002). The faith-based/feminist coalition that coalesced around
trafficking in the late 1990s managed to bypass traditional anti-trafficking groups, including longstanding organizations like CATW. Current
anti-trafficking discourse and initiatives carry few traces of the trafficking debates or their key institutional players. Such new social actors as
Linda Smith of Shared Hope International, Gary Haugen of International
Justice Mission, and Kevin Bales of Free the Slaves have entered the
scene. Prostitutes rights and harm reduction advocates are routinely
described and dismissed as the pro-prostitution mafia (Morse 2003) or
the pro-prostitution lobby (Hertzke 2004) and described as champions
of teaching child prostitutes to use condoms. The hegemony of this new
anti-trafficking coalition did not arise in a vacuum: to some degree antitrafficking feminists discursive victories in the 1990s paved the way for
the ascendancy of this neoabolitionist movement.

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The Trafficking Victims Protection Act of 2000


Intensified concern around sex trafficking in the 1990s led to the creation
of two U.S. bills to combat the problem. While the Trafficking Victims
Protection Act (TVPA) focused primarily on sex trafficking with a few
gestures toward other forms of forced labor, a second bill sponsored by
Senator Paul Wellstone and favored by the Clinton administration understood sex trafficking as one of many forms of coerced labor (Committee
on Foreign Relations 2000). The Wellstone-sponsored bill included provisions to prosecute forced labor in all its guises, stressing that involuntary
servitude was not exclusive to segments of the sex industry but was also
liable to occur in the agricultural, domestic labor, garment, food service,
and many other industries. Sex worker rights groups and members of
Clintons State Department largely supported this bill, which conceived
of prostitution as a form of labor whose characteristics were linked to the
conditions under which it was performed. Thus the relative autonomy or
dependency of the worker was an important gauge in assessing whether
a particular incident constituted voluntary migration, a form of debtbondage, or outright slavery.
An alternative bill was drafted by Republican Congressman Chris
Smith with considerable input from Laura Lederer of the Protection Project
and Gary Haugen of the Christian-based International Justice Mission.3
The abolitionist feminists and religious activists who supported this bill
conducted a forceful lobbying campaign against Wellstones proposed legislation, claiming its focus on a range of labor issues would distract from
combating sex slavery. The anti-Wellstone campaign included threatening
to publicly label the Clinton administration pro-prostitution (perhaps
a potent move in the wake of the Monica Lewinsky scandal) should the
bill be signed into law. Ultimately the Republican-sponsored Trafficking Victims Protection Act (TVPA) was passed despite State Department
opposition.
The TVPA, which is Provision A of the larger Victims of Trafficking
and Violence Prevention Act of 2000, created the Office to Monitor and
Combat Trafficking in Persons within the State Department to oversee
its enforcement. The Act contains provisions to protect victims of trafficking from criminal charges while strengthening domestic laws against
trafficking by trying perpetrators as rapists. It provides a mandate to set
aside funds for the rehabilitation of victims by providing proper shelters,
education programs, and a few financial grants to victims for starting
small businesses. The Act also sets international standards to which
governments must comply in order to continue receiving nonhumanitarian aid from the United States. In this latter effort, it establishes a

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three-tier system that ranks nations according to their efforts in fighting


trafficking.
The TVPA and another legislative document also adopted in 2000, the
United Nations Optional Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, together determine
anti-trafficking policy on an international scale. Reflecting the fractious
context in which they were conceived, both documents offer multiple
definitions of trafficking. In some instances, the term refers to all forms
of forced labor. At other points it is a synonym for the exploitation of all
women and girls in systems of prostitution. The TVPA offers no category
for unforced prostitution, while the UN Protocol is the more liberal document and vacillates between referring to all commercial sex exchanges as
forced and making distinctions between voluntary and involuntary prostitution. The UN Protocols inconsistent definition of trafficking suggests
that the views of groups arguing against a monolithic understanding of
trafficking as prostitution were also registered, albeit indirectly.
In the last instance, however, both documents constituted a decided
victory for neoabolitionist forces. Both label the objects of anti-trafficking
interventions sex slaves, a term that functions to obliterate distinctions between involuntary and voluntary sex work. Such language was
bolstered by the violence-against-women campaign as well as print and
broadcast media exposs featuring sordid stories of global trafficking networks and the women and children ensnared in their web. In this context,
sex worker rights advocates were cast as supporters of child prostitution
and the institutional relationships government agencies like the State
Department had established with groups supporting harm reduction and
decriminalization were threatened with public exposure as supporting
child molesters and their advocates.
It appeared that scandal generating as an activist strategy would be
put to rest when George W. Bush took office. The faith-based coalition
against trafficking strongly believed Bushs moral convictions and bornagain background would lead him to more vigorously enforce the TVPA
and prosecute prostitution rings. Much to the abolitionists chagrin, the
Act got lost in the transfer of power and the State Department initially
dragged its heels on its enforcement. Furthermore, many of the same
institutional relationships the State Department had established under
Clinton were maintained in the first year of Bushs presidency. In 2002,
the groups behind the TVPA mobilized their constituencies to pressure
the Bush administration to change its handling of the Act. In a threatened
reinstatement of the shaming tactic used during the Clinton era, Michael
Horowitz, a senior fellow at the Hudson Institute and a key figure in
establishing the coalition that got the TVPA signed into law, wrote to a
fellow advocate that he did not believe the Bush administration would
like to see itself as the subject of television exposs alleging that its State

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Department supports programs teaching seven-year-old girls how to get


their customers to use condoms and to use techniques that make sexual
penetration less painful (Hertzke 2004, 331).
During this episode, the coalition lobbied to have former U.S. representative John Miller appointed as director of the U.S. State Departments
Office to Monitor and Combat Trafficking in Persons. While Bushs chief
strategist Karl Rove initially balked at this ideain large part because
Miller had been an avid supporter of McCains bid for the presidencyhe
eventually conceded and recommended placing Miller in the post to much
fanfare among other conservatives and many feminists. As Ann Morse
reported in the evangelical publication World Magazine:
Mr. Millers fansincluding Vice President Dick Cheney and Congressman
Tom Delay, Henry Hyde, Frank Wolf, and Chris Smithbelieve he has the
guts to take on what Miriam Bell, national director of public policy at the
Wilberforce Forum calls the pro-prostitution mafiapeople who are, antislavery activists charge, deliberately subverting the mandate of the Trafficking
Victims Protection Act. (2003)

The War Against Trafficking


It is a truism that the September 2001 attacks on the World Trade Center
and Pentagon radically reshaped the cultural and political landscape in
the United States and abroad. Seemingly overnight, the concerns and
priorities of the earlier periodthe deepening of trade relations with
Mexico, the prosecution of freewheeling executives at Enron, and the
giddy projections in government and academia about the triumph of globalizationseemed to disappear along with the Twin Towers. From the
vantage point of the womens rights movement it seemed plausible that
the global realignments wrought by 9/11 would displace concern about sex
trafficking that had been mounting throughout the 1990s. Depending on
where one stood in the 1990s trafficking debates, this potential displacement of sex trafficking from the governmental agenda was construed as
cause for relief or grave concern. From the immediate post-9/11 vantage
point, some critics of anti-trafficking legislation adopted in 2000 suggested that traffickingwith its emphasis on the unsanctioned movement
of peoplemight mesh with pervasive fears of terrorism and become a
powerful tool with which to curb immigration, while anti-trafficking lobbyists suggested that it would be a grave mistake if wartime led the Bush
administration to forget the scourge of trafficking.
Attention to sex trafficking has neither disappeared nor have its laws
simply become instrumental mechanisms through which the administration can hold back immigration. Under considerable pressure from
its faith-based constituency, the Bush administration has taken up the

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Gretchen Soderlund

anti-trafficking cause as a key humanitarian initiative in the post-9/11


period. Spurred on by Millers office, the TVPA became one of Attorney
General John Ashcrofts most heavily enforced legislative acts. In 2003,
Ashcroft allocated 91 million dollars in appropriations for anti-trafficking
initiatives while awarding million-dollar grants to evangelical groups like
Shared Hope International and International Justice Mission (Report to
Congress 2004). The State Department now produces an annual Trafficking in Persons Report that monitors the progress of the United States
and other countries in breaking up trafficking rings, arresting their
ringleaders, and rescuing their victims.
Like the war on terrorism, what abolitionists have called the global
War Against Trafficking is decidedly U.S. directed.4 The United States
is also using its status as a superpower and major donor nation to force
other countries to allow its citizens to raid brothels and send prostitutes
into rehabilitation programs as well as to create domestic legislation that
further criminalizes sex trafficking (and by extension other forms of prostitution). A centerpiece of the TVPA is its provision to rank nations according to their status as importers or exporters of trafficking victims and
announce these rankings in an annual Victims of Violence and Trafficking
in Persons Act of 2000 (TIPS Report). Tier 3 countries are deemed to have
the worst trafficking track records; Tier 2 are borderline cases; and Tier 1
nations are seen to have complied with the U.S. governments anti-trafficking recommendations. From the vantage point of many abolitionists, the
TIPS Report constitutes an example of the United States exerting moral
leadership in the world. However, there is a strong correlation between the
Bush administrations larger foreign policy goalsthat have little to do
with moralityand its willingness to place countries on Tier 3 status.
The 2004 TIPS Report accords Tier 3 status to ten nations, three of
which are perceived political threats to the United States: Cuba, North
Korea, and Venezuela. In 2002 the United States was embarrassingly
exposed supporting a coup against Venezuelas democratically elected
leader, Hugo Chvez. Chvez, a notorious populist and critic of U.S.
imperialism, is president of the fourth-largest oil-producing country
in the world. At a time when the fate of Middle Eastern oil reserves is
unclear, the Bush administration was hoping opponents of Chvez would
install a leader with friendlier attitudes toward the United States (Harvey
2003). When Chvez handily survived a referendum in August 2004, the
United States retaliated by pulling support for $250 million in loans
that Venezuela had requested from international finance institutions.
Venezuelas record on trafficking in women and children was cited as
the reason for this diplomatic maneuver. The countrys absence from the
2003 TIPS Report and incredulous statements from international human
rights observers signaled to Venezuela and other Latin American nations
that the United States was using anti-trafficking laws to gain leverage in

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77

this oil-rich region (Shifter 2004, A19). This case suggests that the tools
anti-trafficking laws put at the administrations disposal can be used to
further other geopolitical ends and are inseparable from the larger arena
of international politics. Indeed, in recent years the TVPA has been used
to justify both continued economic sanctions in Cuba and the continued
freeze on diplomatic relations in North Korea.

When the President Speaks, the Media Parrot


President Bush also went on to generate much publicity for anti-trafficking crusades in the last years of his first term. Oft cited in news reports
is his 23 September 2003, annual Address to the United Nations. Well
aware that his international audience was deeply suspicious of his handling of Iraq, Bush devoted the last third of his 18-minute speech to global
sex trafficking, which he described as a clear-cut violation of moral law.
In moving effortlessly from the war on terrorism to the evils of global
sex trafficking, he took strides to symbolically link his nation to the
broader moral agenda embodied by the new War Against Trafficking.
Bush claimed the United States was supporting, and even spearheading,
many global initiatives to combat the traffic in women. Each year, he
stated, an estimated 800,000 to 900,000 human beings are bought, sold,
or forced across the worlds borders. . . . The victims of the sex trade see
little of life before they see the very worst of life (2003). His oratory was
laden with nineteenth- and early twentieth-century anti-prostitution
rhetoric, describing sex trafficking as a spreading but hidden evil, an
underground of brutality and lonely fear, and a special evil (2003). An
amplified mood of public sentimentality on the part of U.S. audiences in
the post-9/11 era guaranteed the domestic success of this rhetoric. Bushs
public speeches on trafficking had widespread reverberations in the journalistic field. The tone and substance of his UN speech was subsequently
adopted by a cadre of male journalists in high-profile and controversial
New York Times and New York Times Magazine exposs on sex slavery
in the United States and Cambodia (Kristof 2004; Landesman 2004).
Bushs rhetoric drew on historically and institutionally embedded ways
of telling stories about trafficking. Indeed, if news reports and policy
documents are any indication, there appear to be few ways to talk about
sex trafficking that do not include dramatic readings of the captivity
narratives well-rehearsed scripts: the prison-like brothel, the lured or
deceived female victim, and her heroic rescuers. These features not only
become ritually invoked and necessary aspects of such narratives by
indexing sex slavery, but they also define the rhetorical limits of what can
be said about the phenomenon on a popular level. If prisons are physical
structures meant to keep evil away from good, then melodramatic sex

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Gretchen Soderlund

trafficking captivity narratives that equate brothels with prisons invert


this symbolic order by representing good locked away in an evil world.
Such narratives necessitate the introduction of a third party that not only
witnesses but takes decisive action to end the sex slaves suffering and
restore moral order to the world.
Such rhetoric characterized the September 2004, colloquium at the
Chicago Cultural Center titled For Sale or Rentthe Captive Daughters
of the Ukraine. This public forum featured Melanne Verveer, chair of
Vital Voices; Amy Heyden, coordinator of the Global Human Trafficking
Prevention Program; and Victor Malarek, a zealous Canadian investigative reporter and author of The Natashas: Inside the New Global Sex
Trade (2004b). Malareks fire-and-brimstone oratory was straight out of
earlier eras (indeed, had he not lambasted UN peacekeepers as rapists
and traffickers and derided the internet as the steamiest whorehouse
on the planet [2004a] one might have guessed he had traveled, via time
machine, to the colloquium from the late nineteenth century). The panelists collectively affirmed that although numbers were hard to come by,
sex trafficking is the fastest growing crime in the world and the most
egregious human rights violation imaginable (2004a). Trafficking constitutes a modern-day slave trade of epic proportions that is not unique to
one country but in fact spans the globe. It is an unimaginable nightmare
for its desperate victims who in Malareks words are sold like cattle and
then discarded like used dishrags (2004a).
Consider also the case of New York Times columnist Nicholas Kristofs
series on buying the freedom of two young sex slaves in Poipet, Cambodia,
that originally ran in January and February 2004, and which he revisited in January 2005. In the original three-part series, Kristof describes
purchasing two Cambodian teens from brothels and returning them to
their families, all the while casting the journalist as swashbuckling hero,
castigating feminists, and lavishing praise on the Bush administration
for its actions on behalf of women. A year later Kristof visits the slaves
whose freedom he allegedly secured and finds that one of them had
returned to Poipet and her old brothel. Rather than altering his paradigm
regarding prostitution, he rationalizes Srey Moms return to the brothel
by appealing to her drug addiction, her eerily close relationship with
the brothel owner, and her low self-esteem. In this anniversary column,
Kristof writes: Aid groups find it unnerving that they liberate teenagers
from the bleak back rooms of a brothel, take them to a nice shelterand
then at night the kids sometimes climb over the walls and run back to
the brothel. Kristof goes on to state: It would be a tidier world if slaves
always sought freedom. But prostitutes often are shattered and stigmatized, and sometimes they feel that the only place they can hold their head
high is in the brothel (2005, A15). Rather than questioning the efficacy
of abolitionist strategies, he ends his story by affirming anti-prostitution

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79

campaigns: this 21st century version of slavery has not only grown in
recent years but is especially diabolicalit poisons its victims, like Srey
Mom, so that eventually chains are often redundant (2005, A15). The
false consciousness thesis, which has stalked sex workers since they
became configured as victims (as opposed to public nuisances), continues
to be evoked with equal enthusiasm today as a paradigm-saving technique, one that encourages activists to dodge potential pitfalls in their
own interventionist strategies.

Enforcing Procreative Sex


When liberals and some radical feminists laud the administration for its
handling of the sex-trafficking issue they engage in a dubious act of legislative formalism that fails to recognize the overall context in which antitrafficking efforts occur. If we cannot isolate the TIPS Report from larger
geopolitical interests, we similarly cannot bracket the administrations
efforts to abolish prostitution from its broader campaigns against womens
reproductive rights. The Bush administrations fight against global sex
trafficking conveniently dovetails with its quest to dismantle public
health efforts that support womens reproductive rights and champion
condom use as a viable means to control pregnancy and the spread of HIV/
AIDS (Saunders 2004). Efforts to curb prostitution in the name of rescuing
sex slaves are deeply intertwined with attempts by the Bush administration and its faith-based constituency to police nonprocreative sex on a
global level. This stance betrays a deep moral aversion to womens engagement in nonreproductive, family-based sexuality, leading Alice Miller to
ask: How do we ensure that our interventions focused on stopping harm
against women do not unknowingly reinscribe and reinforce the idea that
the most important thing about a woman is her sexual integrity (formerly
known as her chastity) (2004, 39).
During the 1990s, sex worker rights groups promoting harm-reduction
strategies were actively working in conjunction with AIDS/HIV outreach
programs globally and domestically to deliver legal, medical, and other
services to sex workers. Although the TVPA constituted a symbolic threat
to groups working with sex workers, there were no provisions within the
legislation itself that actively prohibited harm-reduction activities. This
has not gone unnoticed by the Bush administration, which has since 2001
created new policies and legislation to stem the (very small) flow of federal
funds that were channeled toward international sex worker advocacy. Its
reinstatement of the Mexico City Policy (also known as the 2001 Global
Gag Rule), which bans NGOs from receiving federal funding if they provide abortions, discuss abortions with their clients, or advocate changing
a nations abortion laws, provided the template for two subsequent policies

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that have curtailed all funds to nonabolitionist groups that interface with
sex workers.
In 2003, as part of the Trafficking Victims Protection Act Reauthorization Act, the administration announced that the U.S. Agency for International Development (USAID) would stop funding any group perceived
as encouraging sex work. The new policy stated that groups advocating
prostitution as an employment choice or which advocate or support the
legalization of prostitution are not appropriate partners for USAID antitrafficking grants or contracts (Hill 2003). This rule meant that nonabolitionist groups doing AIDS/HIV outreach or offering other harm-reduction
services to sex workers were no longer eligible for funds from USAID.
Among the international programs partially funded by the United States
was a sex workers literacy class run by Thailands Empower, a group that
since 1985 has advocated for the rights of women in the entertainment
industry in that country.
Policies surrounding the Global Gag Rule led many activists to worry
that sex worker empowerment projects operating in conjunction with
AIDS outreach programs would be next in line to be axed. Indeed, in
2003 the Bush administration passed a Global AIDS bill that prohibits
international agencies from receiving funds unless they explicitly sign
an oath that they do not support or condone prostitution in its many
manifestations and that no funds will be going toward harm prevention
among sex workers (Saunders 2004). In a Seattle Times editorial titled
Fight AIDS, Of Course, But Also Fight Prostitution, TVPA enforcer
John Miller states
the worldwide fights against AIDS and slavery are both worthwhile, uphill
battles. However, well intentioned people seeking to limit the spread of AIDS
in at-risk populations, especially in the commercial sex industry, often ignore
a larger challenge: helping to free the slaves of that industry. (2004)

He goes on to warn that groups distributing condoms to sex workers run


the risk of being judged the same way as some of their 19th century predecessors: health reformers who sought to improve health conditions for
slaves on ships while ignoring the slave trade (2004).
In light of widespread brothel escapes and other thwarted attempts at
rescue, it seems particularly cynical that the Bush administration, under
guidance from its faith-based constituents, has cut off all U.S.-funded
condom distribution and harm-reduction programs for active sex workers,
all the while stating that death from HIV/AIDS is a primary hazard of the
trade. In neoabolitionist theory, all prostitutes are innocent victims who
will naturally accept aid groups attempts at rescue and rehabilitation,
which sometimes include furnishing women with sewing machines or
proselytizing to them about Jesus. In neoabolitionist practice, however,
as in earlier Christian-based attempts to rehabilitate fallen women, pity

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81

and assistance extend only to those sex workers who are repentant and
can be held accountable for their sins. By offering this dubious yet morally rigorous aid to sex workers, abolitionists can comfort themselves
that they were not responsible for any deleterious effects caused by their
elimination of harm-reduction programs. The abolitionist logic seems to
run: We did offer them a way out, after all.

The Politics of Rescue


Global sex trafficking, conveyed through a Manichean lens, has become
a nonpartisan issue in part because the demarcation between victims and
villains seems clear and the offense ghastly, particularly when perpetrated
on the young. Yet innocence carries a particularly heavy burden in the
realm of sexuality. In the United States it has been a consistent trope in
journalistic accounts of sexual crimes and, in the case of rape, prostitution, gay hate crimes, and AIDS/HIV, a criterion for public sympathy
(Benedict 1992; Miller and Vance 2004). But it is a nearly impossible standard against which to hold living, breathing human beings, except perhaps
children. Indeed, in their pamphlets and on their websites, neoabolitionist
organizations tend to emphasize those raids that involved the rescue of
children. President Bush has remarked that the victims of the sex trade
see little of life before they see the very worst of life (2003) and many
anti-trafficking activists see it as their calling to restore childhoods to
young children exploited by sex traders. Linda Smith, a former Republican
congresswoman who now directs Shared Hope International, created a
humanitarian spectacle in 2001 when she took one rescued Indian girl to
Disney World. But in more than a few cases, innocence is an adult fantasy,
a fictive state of being projected onto women and youth by 21st century,
anti-trafficking crusaders.
Setting aside the politics of taking girls to undisclosed locations for
rehabilitation and likely proselytizing, if rescuing children from brothels
was abolitionists only focus, their agenda might appear less worrisome.
But clearly the agenda of U.S. organizations stretches beyond ending the
exploitation of children and ventures into legislating against nonprocreative sex and using law enforcement strategies to combat all forms of
sex work in the name of protecting women. The federal government has
furnished these groups with enough resources to ensure that they will
become a significant presence in sex workers lives. These faith-based
human rights organizations treat prostitution as an issue of conscience
and morality rather than of income possibilities and labor, a stance that
emphasizes protection over autonomy and empowerment. Gary Haugen
of IJM puts it succinctly: trafficking is not a poverty issue, its a law
enforcement issue (Landesman 2004, 30).

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Too often Western feminists have participated in producing the victim


subjects that state actors step in to protect through the deployment of
military, legal, or law enforcement strategies. Victim discourse has been
implicated in the creation of feminists sometimes patronizing attitude toward nonWestern women onto whom victim status is projected
(Mohanty 1991). Such a dynamic encourages some feminists in the
international arena to propose strategies which are reminiscent of imperial interventions into the lives of the native subject and which represent
the Eastern woman as a victim of a backward and uncivilized culture
(Kapur 2002, 6). Drawing on the case of Nepalwhich has recently criminalized the movement outside the country of women under 30 without
a husband or male-guardians permission as a means of combating traffickingKapur suggests that solutions in the realm of law enforcement
are an essential component of such logic: The construction of women
exclusively through the lens of violence has triggered a spate of domestic
and international reforms focused on the criminal law, which are used to
justify state restrictions on womens rightsfor the protection of women
(2002, 6). As we have seen in the case of Western-sponsored brothel raids,
the United States is using the protection of women as a rationale to import
its law enforcement tactics and project its power internationally, while
conveniently merging these interests with a crackdown on the sexuality
and rights of women.
The emphasis on victimization in the West is historically linked to
the exigencies of activist publicity around race and gender issues in the
context of a masculinist state that exalted and protected only those victims whose innocenceand distance from state-based oppressioncould
be established or asserted in sympathetic terms. At some historical
moments these representations of innocent victims dovetail with the territorial interests of political actors, ushering in what Iris Marion Young
has recently referred to as a security regime (2003), in which the state
takes on the seemingly benevolent role of protector. Focusing primarily on abuses like violence against women and organizing around them
as though they were the only distinctly gendered form of human rights
violation, ultimately casts women as victims in need of protection from
harm rather than as subjects deserving of positive rights. Emphasizing
the most abject victims, while often an important and efficacious activist
strategy, runs the risk of mobilizing media and governmental institutions
in protectionist scenarios that overshadow demands for other forms of
social and economic rights (and, in this case, the creation of laws that do
not construe sex as inherently dangerous for women).
This is not to say that states have no duty to protect their citizens from
harm and provide other basic forms of security. However, in the security
regimes to which Young (2003) refers, protection is offered selectively and
at a cost: it only stretches to those deemed innocent, while it persecutes,

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83

criminalizes, or ignores those who are seen as complicit in their victimization. Not only are security regimes in the business of offering an illusory form of security to particular subjects, but they often engage in the
production and provocation of their own enemies to justify their actions.
This security is underwritten by a disavowal of autonomy or agency in
favor of a childlike dependency on typically masculine protectors. As
Young emphasizes, such dependent citizenship confers few privileges
other than offering shelter from a scary, threat-filled outside world.

Rejecting Rescue, Reconsidering Liberation


Feminists should seek to understand the effects of anti-trafficking legislation within the broader context of Bush administration and conservative
religious approaches to dealing with gender and sexuality on the international scene. It is only when considered alongside the Mexico City
Policy (the Global Gag Rule) and the Global AIDS Bill that the material
effects of anti-trafficking legislation become apparent. While the Bush
administrations sponsorship of the War Against Trafficking functions
to give a feminized, human face to the War on Terrorism, the politically
motivated Trafficking in Persons Report rankings suggest that even this
example of national moral leadership is implicated in the strategic geopolitics of oil procurement and strategic power projection. On the level of
strategic intervention, it appears we may be witnessing the introduction
of U.S. policing efforts in poor countries using humanitarianism as both
a motivating force and rationale. Indeed, anti-trafficking initiatives have
historically played a key role in expanding the federal governments legal
reach (Langum 1994; Soderlund 2002).
The current security regime tends to exalt those victims who can talk
back only with difficulty: Iraqi and Afghan women, the unborn, the brain
dead, and so-called sex slaves. As largely silent victims, they are neither in
a position to make public claims about changing the social system nor to
stipulate the conditions under which they might feel free or secure. In the
case of trafficking victims, freedom is configured as an escape from the
bleak back rooms of a brothel and into a ready-made outside world where
former sex-slaves can return to sometimes oppressive family structures,
work in factories, or serve as nannies and maids for the global bourgeoisie
(Ehrenreich and Hochschild 2002). Freedom, as either utopian quest or
bedrock of democratic thought, has apparently been downgraded to the
ability to engage in wage labor. It seems to me that rather than participating in conservative projects that criminalize either indigenous or migrant
prostitution or remove existing medical and legal support, feminists
should be working toward creating conditions where all women and men
can envision and ultimately participate in their own liberation.

84

Gretchen Soderlund

Gretchen Soderlund is Assistant Director of the Center for the Study of


Communication and Society and Lecturer in Sociology at the University
of Chicago. Send correspondence to soderlun@uchicago.edu.

Acknowledgment
The author thanks Carrie Rentschler, Carol Stabile, Dan McGee, and her
anonymous reviewers for their assistance with this article.

Notes
1. Empower states that its members abhor the trafficking of any persons; forced
labor including forced sex work; and the sexual abuse of children, whether for
commercial exploitation or not yet it also lambastes groups that have little
or no experience on issues of migration, labor, sex worker or womens rights
and have been created to take advantage of the large sums of money available
to support anti-trafficking activities (1).
2. The federal government allocated 91 million dollars to the Department of
Justice to fund its anti-trafficking efforts in FY 2003, a figure that increased to
120 million dollars in FY 2004 (see its Report to Congress, May 1, 2004).
3. For a detailed account of the coalition building that went into passing this
Act, see Allen Hertzke (2004). A problem with his account, however, is that he
adopts the language and perspective of his objects of study, using their rhetoric to account for the opposition to the TVPA in the Clinton administration
and effectively writing sex worker rights proponents out of the debate. In this
sense, he contributes to the extensive retelling of the history of the trafficking
debates that is currently underway.
4. Linda Smith considers her group, Shared Hope International, the founder and
leader of the War Against Trafficking Alliance (WATA).

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Saving young girls from Chinatown: white slavery and woman suffrage, 1910-1920.(Report)

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Saving young girls from Chinatown: white slavery and woman


suffrage, 1910-1920.(Report)
Journal of the History of Sexuality | September 01, 2009 | Lui, Mary Ting Yi
IN MAY 1912 ROSE LIVINGSTON, a self-described missionary working among the white female population of New York's
Chinatown, suffered an attack at a tenement on Doyers Street in the Chinatown neighborhood when she tried to save a
young white girl from the clutches of her "cadet," or procurer. (1) A physician's report stated that Livingston experienced
severe bodily injuries, including "serious and permanent damage" to her face and "a fracture of the alveolar process of the
upper jaw bone which caused severe neurities [sic] with persistent neuralgic pain both day and night ... likewise causing the
loss of all the teeth of the upper jaw on one side of the face." (2) The attack created a public outcry, with New Yorkers
petitioning Mayor William J. Gaynor to prod the police to offer better protection for woman missionaries and reform workers
in Chinatown. The police commissioner disputed the complaints of civilians, however, responding that "conditions in
Chinatown have never been better than they are at present, nor is any portion of the City as heavily policed as this section."
(3) Furthermore, the commissioner claimed that police records did not indicate any report of Livingston having suffered such
an attack. Satisfied that the police had handled the situation properly, Mayor Gaynor concluded that "the police are entirely
capable of taking care of Chinatown. If Miss Livingston is in any danger there she may very easily withdraw." (4)
Although Livingston often worked and traveled alone to minister to the "fallen women" of Chinatown, she received financial
aid and social support from the city's prominent suffragettes, most notably, Harriet Burton Laidlaw and James Lee Laidlaw,
who promoted the entry of women into electoral politics to bring forth much-needed social and municipal reform. To the
Laidlaws, the mayor's response to the attack on Livingston was not only inadequate but symptomatic of the larger problem of
municipal corruption. In response to the mayor's rebuff Livingston and the Laidlaws worked with the city's suffrage leaders to
support a petition for increased police protection in Chinatown.
That December Livingston and the Laidlaws further publicized her antagonistic relationship with the mayor and police at a
lecture held at the Metropolitan Temple at 14th Street and Seventh Avenue. At the conclusion of his introductory remarks
James Laidlaw surprised the audience with the harsh pronouncement that Livingston's worst enemy in her antiprostitution
crusade was no other than the mayor himself. Livingston heartedly agreed, and then, turning to address the audience, she
continued: "If you only knew all the meanness that man has done to me you would understand. Just let me tell you." (5) To
the mayor's annoyance the public lecture and Livingston's constant criticism of the mayor's policing efforts as merely
"keeping vice under cover" led to another round of citizens' letters and petitions flooding the mayor's office. (6) The City
Committee and the board of directors of the Woman Suffrage Party in New York passed a resolution on Livingston's behalf
"relative to conditions said to exist in 'Chinatown' and alleging that the life of Mrs. Livingston, a social worker, is in danger."
(7) Under the guidance of New York's suffrage leaders Livingston further broadened her antiprostitution crusade in
Chinatown, taking the cause beyond New York City and its antagonistic municipal officials to the national political stage of the
woman suffrage movement.
Dubbed in the local New York press as the Angel of Chinatown, Livingston, under the sponsorship of suffrage organizations
throughout the country, conducted lecture tours to call attention to the problems of "white
white slavery
slavery" in New York City's
Chinatown. Aside from offering her eyewitness accounts on coerced prostitution in that neighborhood, she spoke at length
against municipal corruption and ineptitude and for women's right to vote. By publicizing her ongoing clashes with the New
York
City police department and mayor in the course of pursuing her antiprostitution activities, Livingston challenged the
established patriarchal authority of municipal government to protect female residents from sexual and physical harm.
Livingston and her supporters argued that only through women's moral influence in government and lawmaking could women
hope to find adequate protection from sexual predation and exploitation.
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While this period's fascination with coerced prostitution, or "white


white slavery
slavery," as it was called by journalists and reformers, is
well documented, little is known of the role public discourse around white slavery and the accompanying calls for policing
prostitution and interracial sex among immigrants and the working class had in the predominantly middle- and upper-class,
native-born, white
white, woman suffrage movement in New York City. (8) Publications such as What Women Might Do with the
Ballot: The Abolition of the White Slave Traffic and Woman Suffrage and the Social Evil were some of the many
antiprostitution and sexual trafficking tracts that circulated among suffrage circles in the early twentieth century. (9)
Americans' anxieties with female kidnapping and coerced prostitution popularized through the "white
white slavery
slavery" scare
coincided with the last decade of dramatic mass political mobilization for woman suffrage. The overlap of these two social
movements was hardly coincidental or accidental but reveals the ways in which public concern with racial and sexual
transgressions played an important role in the woman suffrage movement.
While the public discourse around "white
white slavery
slavery" mushroomed in 1909, public concern with Chinese immigrants and
coerced prostitution dates back to earlier nineteenth-century concerns with the trafficking of Chinese women for the purposes
of prostitution. (10) These concerns with Chinese prostitution influenced the passage of federal legislation banning Chinese
immigration such as the Page Law of 1875 and the Chinese Exclusion Act of 1882. (11) In California and along the West
Coast concerns with forced prostitution and public immorality in Chinese American communities continued to center on
Chinese prostitutes. The general absence and invisibility of Chinese women on the East Coast, however, meant that the
press, political leaders, and social reformers directed their efforts toward the many white working-class women working and
residing in the Chinatown neighborhood as prostitutes, companions, and wives of Chinese laborers. (12)
Analyzing the public's fascination with Rose Livingston's antiprostitution work quickly reveals how these decades-old popular
fears of Chinese male labor migration bringing forth a sexual "Yellow Peril" resurfaced in the white slavery narratives that
circulated in the early-twentieth-century suffrage movement. Particularly through Livingston's passionate oratories on the
subject of women's sexual oppression and racial endangerment at the hands of unscrupulous Chinese men, these popular
narratives of racialized sexual danger became immensely successful in selling the cause of suffrage to broader audiences
who were otherwise skeptical of women's eligibility to participate in a democratic citizenry. This essay explores the ways in
which the suffrage movement mobilized Livingston's biography and antiprostitution work in New York City's Chinatown to
illuminate the interconnections of class, racial, and sexual politics in the early-twentieth-century woman suffrage movement.
ROSH LIVINGSTON AND THE NEW YORK SUFI-RAGE MOVEMENT
By the late nineteenth century the National American Woman Suffrage Association (NAWSA) had emerged as the leading
national organization of the woman suffrage movement. (13) Often thought of as a white middle-and upper-class women's
organization, the movement in New York City, under the leadership of women such as Harriet Laidlaw and Harriot Stanton
Blatch, worked to build associations with the city's working-class women. Blatch, in particular, drew upon her early
experiences with the Women's Trade Union League (WTUL), with which she worked both in Great Britain and, later, in New
York after die organization established a local chapter in 1902. As historian Ellen DuBois notes, whereas Blatch's mother,
Elizabeth Cady Stanton, employed natural rights theory to argue for woman suffrage, Blatch emphasized women's
importance as laborers and their economic contributions. (14) In the WTUL elite and working-class women collaborated to
bring forth labor reforms through the empowerment of women wage earners. (15) In making the woman suffrage cause
appeal to working women, New York suffrage leaders specifically addressed these workers' concerns about wages and work
conditions, which were informed by legislation influenced through exercising the vote.
Suffragettes such as Blatch and Laidlaw, similar to other urban activists of their day, also devoted their energies to the
Progressives' fight against municipal corruption, including investigations into police involvement in organized prostitution. In a
1914 plan to action for the Woman Suffrage Party of New York, for example, Laidlaw listed the "abolition not regulation of
the White Slave traffic" along with the establishment of a "Wage-Earners Suffrage League" and participation in "the Labor
Day Parade, and other labor demonstrations" as among the many pressing items in the party's social reform agenda. (16)
Given the growing incorporation of working women into the cause of woman suffrage in the early twentieth century, it is
perhaps not surprising that suffrage leaders sought to create an expansive political and social reform platform that
incorporated both labor and antiprostitution concerns because they saw these two issues as intimately connected to the

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economic exploitation of the city's wage-earning women. In their continued work with the city's female laborers, the Laidlaws
and other suffrage leaders enthusiastically supported Rose Livingston's antiprostitution work in Chinatown in the hopes of
ending the sexual exploitation of urban working women.
Despite the Laidlaws' strong commitment to social reform and suffrage, the inclusion of Rose Livingston and her
antiprostitution work posed certain challenges from the beginning. According to the press, the Laidlaws learned about
Livingston and her work after two suffragettes, Cornelia Swinnerton and Florence Irwin, happened onto Livingston as she
was trying to stop a woman from committing suicide in a Greenwich Avenue basement apartment. The two suffragettes
immediately took an interest in Livingston and introduced her to the Laidlaws, who became instant supporters of her mission.
James Laidlaw then worked with two other social reformers--Lawrence Chamberlain and Rev. Edward Sanderson in
Brooklyn--to establish a Mind to support Livingston's work. (17) However, as Livingston emerged as a spokesperson for the
suffrage cause, questions about her background, particularly around her claims to be an ex-prostitute and social reformer,
surfaced in the press and among municipal leaders.
The origins of Rose Livingston remained shrouded in mystery and controversy throughout her reform career, making her
vulnerable to critics who doubted her stories of abduction and coerced prostitution and disapproved of her confrontational
tactics. One internal memo circulating within New York's suffrage circles provided a brief sketch of Livingston with
biographical details that were often repeated during her public lectures. The memo recounted that Livingston had been
abducted and brought to New York City's Chinatown at the age often and had remained the prisoner for the next ten years of
a Chinese man who was both her jailor and her abuser. She had given birth to two children, one at the age of twelve and the
other at the age of fifteen. A local missionary worker learned of her plight and helped to facilitate her flight. After a harrowing
escape that almost cost Livingston her life, the missionary led her to the home of a minister, where she rid herself of an
entrenched drug habit and experienced a religious conversion. (18)
Her detractors, including the mayor and police commissioner of New York City following the alleged 1912 assault incident,
often challenged the validity of these details of Livingston's life and cast aspersions upon her work as a social reformer. In
response to Harriet Laidlaw's complaints over the police department's handling of the incident, for example, Mayor Gaynor
replied: "My reports concerning her are quite different. I shall not put a police guard over here. I doubt if her conduct in
Chinatown is of any service to anyone." (19) And to suffragette and historian Mary Beard, Gaynor added further that "my
police reports strongly indicate that she may not be doing quite so much good there as some suppose." (20) In her own
defense Livingston never placated her critics by proving any detail of her captivity story as a prostitute imprisoned in
Chinatown but rather spoke of her mistreatment at the hands of procurers and corrupt police officers and appealed to the
reputation of her patrons, such as the Laidlaws, as testament to her virtue and honesty.
A month after the alleged 1912 Chinatown assault, for example, the Laidlaws solicited character references from city
reformers such as Frank Moss of the Society for the Prevention of Crime and her past employers to shore up Livingston's
reputation. (21) Elizabeth Hartley of the Hope Baptist Church confirmed the stories of Livingston's dramatic religious
conversion in the fall of 1906 and recalled that she quit her opium habit the following spring through a painful detoxification
process: "We put her in my bed and there she stayed for about three months. Twice we called a Doctor but she refused to
take any medicine saying she would rather die than go back to the opium. She was delirious for three days in awful physical
agony." (22) Eleanor Keller, who had employed Livingston for two years following her conversion, commented on Livingston's
"personal habits and conduct," stating that she was always all that one could desire pure m word and thought, free from any
desire for drink or drugs, kind patient and ever anxious for others who were tempted." (23) Bertha Rembaugh, who served as
counsel for the Women's Society for the Prevention of Crime, where Livingston worked for a year under her supervision,
stated that "while Miss Livingston is not, of course, without faults and weaknesses of temperament, yet I firmly believe her
honest and reliable in every way." (24) The letters of Hartley, Keller, and Rembaugh--similar to those written by Livingston's
other supporters throughout her tussle with the mayor and police department--made no attempts to verify the details of her
Chinatown capture and sexual exploitation. Instead, they strongly testified to her social commitment, sobriety, and steadfast
moral character. In effect, they supported Livingston's claims of spiritual, moral, and social redemption without commenting
on the veracity of her story of abduction and sexual slavery
slavery.
The only writer to take up Livingston's claims of sexual slavery in Chinatown was a Chinese American interpreter by the
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name of Moy Gum. After much questioning in the Chinatown neighborhood, Moy Gum reported that Livingston was an
accomplished liar who "professes to have been detained a prisoner there to an evil life for ten years but this is contradicted
by all who have known her in the life. She is a terrible story teller contradicting her own statements wherever she goes." (25)
Moy Gum furthermore questioned her claims to be a selfless social reformer, claiming that he and other Chinese residents in
the neighborhood had recently attempted to rescue "little Chinese domestic servants (and have been successful in three
cases)" but were thwarted by Livingston herself. Lest his readers think him prejudiced against white female missionaries or
social reform workers in Chinatown, Moy Gum added that he personally knew of several such workers in the Chinatown
neighborhood, but he could in good conscience only state that Mary Banta of the Church of All Nations on Second Avenue is
"a hard and good worker." In support of his claim that Livingston was not the self sacrificing reformer the Laidlaws believed
her to be, he enclosed with his letter a photograph of "slave girls
girls" rescued by Miss Banta whom she supported "out of her
hard earned missionary salary at Drew Seminary, Carmel, N.Y." (26)
Livingston's benefactors did not take such accusations lightly and quickly investigated the letter's origins and charges against
Livingston. The letter, it was later discovered, was sent after a man by the name of James R. Garner had contacted the New
York City Chinese Extension and Mission Society at the Chinese Mission located at 291 Bowery for information on
Livingston. Moy Gum, it was said, "'was a nice young man of Christian character." (27) Not satisfied, the Laidlaws made
additional inquiries into Moy Gum's background within the Chinatown neighborhood and came upon Charles Gong, a
resident of 3 Doyers Street, who also worked as an interpreter. Gong's letter cast doubt on Moy Gum's damning claims
against Livingston, suggesting that Moy Gum was tricked into penning and signing the incriminating missive by women of
questionable character in the Chinatown neighborhood. "The Chinese man which you wish to find out who written such an
outrageous letter against Miss Livingston he must influence by those women whom they are associated with. The case like
that most of them wrote the letters and made the Chinaman signed their name for there is such foolish men do what they
want them." (28)
The Laidlaws seem not to have put their trust in either Chinese American interpreter. Instead, in an attempt to quell the many
challenges to Livingston's character the Laidlaws requested a medical examination to ascertain the extent of Livingston's
injuries as well as to confirm that she was not afflicted with syphilis. (29) Even with such unresolved questions regarding her
origins, Livingston's audiences and supporters for the most part overlooked these challenges to her past and moral
character. Instead, they, like the Laidlaws, were genuinely moved by her heart-rending story of abduction, enslavement, and
moral redemption, compelling them to take up the fight against forced prostitution in New York's Chinatown and by extension
woman suffrage.
More powerfully, the press and Livingston's descriptions of her experiences working in Chinatown won her many supporters
throughout die city and silenced her detractors. At the December 1912 Metropolitan Temple meeting, for example, she vividly
painted to her audiences her many run-ins with the police in Chinatown when she attempted to protect a girl from her cadet.
"I saw a girl running away from a cadet, and she ran almost into a policeman's arms." Livingston continued: "'Officer,' I said,
'won't you protect this poor girl from this fellow?" and, would you believe it, that policeman just knocked her back into the
cadet's arms and watched while he beat her up." She finished with another story depicting similar physical violence and
police indifference in a case where a girl had been "dragged by die hair till her scalp 'stood up' and kicked brutally in the
stomach." Exasperation with die police, Livingston informed her audience, led her to get a "warrant and serv[e] it herself."
(30)
Livingston's monthly activity reports to the Laidlaws provide brief descriptions of her consistent daily efforts to both police and
minister to Chinatown's white female population. Her work log for the month of July 1915 noted her visits to tenement
houses on Bayard and Division streets where "girls
girls are leading immoral lives" as well as her efforts to provide care and
comfort to ailing women in the Chinatown neighborhood--Eliza at 4 Doyers Street and Mamie Budd at 12 Pell Street, who
was "very ill with consumption, and also from giving up the opium." (31) Eliza's health improved after a few days of rest, but
Mamie Budd's worsened. After providing almost ten days of care, Livingston arranged for a nurse from the Henry Street
Settlement to take over visiting the very ill Budd. She returned in mid-August but found that Budd remained in extremely poor
health. A few days later Budd died with Livingston at her side. (32)
While Livingston engaged in social welfare work for several days each month, the great portion of her activities involved
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maintaining surveillance on the white female population of Chinatown. At times Livingston intervened to rescue underage
girls from working as prostitutes in die area. Yet the extent to which young teenage girls or women were actually abducted
and imprisoned in the Chinatown neighborhood remains difficult to assess, given that many of Livingston's cases suggest
more freedom of physical and social mobility and sexual experimentation than the term "white
white slavery
slavery" clearly suggests.
Popular narratives of Chinese-white
white sexual relations came couched in the language of the "white
white slavery evil" in
Chinatown and more often portrayed these young girls and women as victims of predation--whether by Chinese laborers or
procurers--rather than acknowledged their ability to make conscious choices that included refusing aid and running away.
Regardless of whether these accusations were accurate or false, these beliefs of young white women under assault by
Chinese men informed the social reform discourse that authorized the policing of white female and Chinese male mobility
and social interactions in the Chinatown neighborhood.
Livingston's notes on her surveillance of and intervention for seventeen-year-old Bessie Baker exemplify a typical case for
the Angel of Chinatown. The reformer first encountered Baker when she noticed her coming out of a residence in Chinatown.
Livingston then "watched her for several days" before discovering that Baker was working with another Chinatown prostitute,
Gypsy Gordon, to whom Baker gave "$.50 of every dollar she got." (33) Livingston eventually approached Baker and learned
from their conversation that she was under age. She then "rescued her" by removing her from the neighborhood and taking
her to Livingston's home; Baker was then taken away by another social reform worker in the hopes of finding a new "good
home." However, Baker refused their assistance and told Livingston that she preferred to return to her family, who resided at
33 Allen Street on the Lower East Side. But when Livingston returned about a month later to monitor her progress, Baker
was not residing at her parents' home. Livingston then tried to convince Baker's parents to "file a complaint against her in
order to have her sent away to the Bedford Home for she has gone back to lead an immoral life as formerly." Her parents,
who "refuse to have anything to do with her," did not comply with Livingston's instructions. Baker later became ill and was
taken to a hospital. (34) As this case suggests, despite Livingston's descriptions of her efforts toward Baker as "rescue,"
Baker's defiance and unwillingness to cooperate with reformers showed the extent to which Baker may not have viewed
Livingston's actions as "rescue" but more as an unwelcome attempt to end her free mobility.
Real or imagined, this discourse on Chinatown as a site of racialized sexual danger offered suffrage leaders a valuable
weapon in their efforts to attract and convert supporters to the cause. During her lectures on behalf of the suffrage movement
Livingston challenged her audiences to consider the potential of women's political participation to eradicate public toleration
of prostitution, arguing that only through women's influence exercised through the vote in shaping critical legislation would
the sexual exploitation of women finally end. In her talk to the Political -Equality Association, headed by the prominent
socialite and suffragette Alva Belmont, for example, Livingston began by describing her work in Chinatown and stating that
"nothing would wipe out 'white
white slavery
slavery' there until women got the vote." (35) She added: "A woman may make a mistake,
but she would never make a bigger mistake than the men who elected [Mayor] Gaynor." (36)
Furthermore, their ineligibility to vote made women lesser citizens and deprived them of equal treatment under the law. To an
audience gathered at the Central Presbyterian Church in New Castle, Pennsylvania, Livingston decried the unfair treatment
of female prostitutes and "double standards of morality" when it came to prosecuting male procurers and customers. She told
the story of a young girl whom she had rescued after the girl was viciously beaten. The man charged in her attack, however,
"got off with but a short term, as he was a voter, and election time was near." (37) Questions about municipal corruption and
political machines aside, as long as men could vote and women could not, men would continue to enjoy special privileges.
At the conclusion of these anti-white
white slavery
slavery/suffrage meetings, organizers asked for donations for Livingston's
antiprostitution work and pledges of commitment to the woman suffrage cause. In West Newton, Massachusetts, for
example, the audience was asked first to contribute financially to Livingston's work against white slavery
slavery. Then the women
in the audience were asked to join the Equal Suffrage League, while the men were "asked to sign cards, saying that they will
vote for Woman Suffrage next fall." (38) By numerous accounts, Livingston's tours around the country were highly
successful in simultaneously winning supporters for both the antiprostitution and suffrage causes. The vivid descriptions of
white female imprisonment and sexual exploitation and police corruption so passionately conveyed by Livingston in her
speeches stuck with audiences long after her appearances. Supporters such as Letta Turnbull of Cleveland, Ohio, sent in
donations and words of encouragement and outrage after first apologizing for not having made a donation when she first
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heard Livingston speak in her city. "This business of seizing girls forcibly and imprisoning them in resorts seem[s] to me so
horrible that I grow furious at the great indifferent public which tolerates it. For the public is to blame. If people were
sufficiently aroused to the enormity of this thing it could and would be prevented." (39) Likewise, Mrs. John A. Church of
Chagrin Falls, Ohio, sent Livingston a watch chain and neck chain "to be used in her work." (40) Livingston's highly
successful spring 1913 whirlwind tour of Ohio led Harriet Taylor Upton, president of the Ohio Woman Suffrage Association,
to remark in a letter to Harriet Laidlaw that the news from the Cleveland and Chagrin Falls suffragettes had been
overwhelmingly positive," all [speaking] so splendidly of Rose's work and all saying that she did an immense amount of good
for suffrage. One woman expresses it that she did more good than any other one person who has been in Cleveland for a
long, long time." (41)
So popular was Livingston's visit to Chagrin Falls that some members of the audience formed the Rose Livingston Club,
comprising school-age girls
girls, in her honor. Shortly after die club's founding the local suffrage association gave a banquet in
honor of the club and its newly elected officers, thereby cementing the link between the causes of anti-white
white slavery and
woman suffrage. Members wore special pins to identify themselves and maintained correspondences with Livingston herself
on her Chinatown work while pledging themselves to the woman suffrage cause. The intimate nature of these exchanges
allowed members to feel personally connected to Livingston and her antiprostitution crusade in Chinatown. Marian Brewster,
for example, in her letter to Livingston discussed family matters as well as club activities, ending with die message to "give
my love to all of those unfortunate girls and tell them we, our club, is going to help them all we can." (42)
THE ANTI-WHITE
WHITE SLAVERY CRUSADE AND THE WOMAN SUFFRAGE MOVEMENT
Livingston's arguments for the vote in order to fight forced prostitution mirrored contemporary popular discourses on the
topic. For example, in 1913 Laidlaw published in the national social reform magazine Survey a review of My Little Sister, a
novel by the American writer and suffragette Elizabeth Robins. Following the lead established by English social reformer
William T. Stead, whose 1885 series The Maiden Tribute of Modern Babylon first brought the problem of forced prostitution to
the British public and sparked a white slavery scare, Robins's book similarly focused on the themes of child abduction and
white slavery through the domestic fictional narrative of an English family whose younger daughter falls prey to white
slavers. Though originally published in London, the story reached American audiences through its two-part serialization in
McClure's magazine. (43)
Laidlaw praised Robins's writing for conveying the emotional turmoil suffered by families whose daughters fall victim to white
slavery
slavery. More importantly, she lauded die novel's ability to convey the urgency of woman suffrage as a critical tool for
combating sexual slavery
slavery: "How utterly ineffectual seem an individual mother's effort for the safety of her child. How evident
is it that a mother's care must have back of it power--power in council and legislative hall." (44) She sharply called into
question those mothers who continued to abide by the rule that their "place was the home" by suggesting that they were the
ones ultimately responsible for their daughters' tragic fates because "what did all her negative efforts avail in shutting the
danger away from her cherished daughters, in a nation, in a world, which holds a traffic system of such Machiavellian
adroitness, a system which can afford, so great are its profits, to reach into the inner recesses of a home." (45)
The promotion of women's involvement in worldly affairs, particularly through the cause of suffrage, directly attacked the
Victorian bourgeois separation of the social spheres of the sexes. The promoters of the white slavery
slavery/suffrage cause,
however, carefully couched its message of female social and political activism in culturally conservative language that
appealed to broad audiences, especially to those middle- and upper-class women known as die "anus" who opposed the
suffrage movement and advocated the maintenance of separate spheres and gender roles. (46) For example, the
descriptions of Livingston emphasized her religious conversion, which brought about her social redemption from her former
life as a Chinatown prostitute who engaged in commercialized sex with nonwhites. The public's response to her work echoed
these spiritual overtones of Christian salvation. A poem published in her honor by the New York Times in 1912 references
her Christian conversion to counter public criticisms of her sexual past, likening her to Mary Magdalene:
Shall we, in our smugness, pass her by
Because, perchance, [of] the dust of sin
The woman who spite of buffet and scoff
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Has followed Him in a manger born.

Similarly, discussions of her work in "saving


saving" the girls of Chinatown invoked the image of Jesus Christ's great bodily
sacrifices for humankind's redemption. The New York Times poem closed with the following comments:
It is lives like hers that glorify man
Above the beast that preys on its kind.
The martyr's thorns have pierced her brow.
She has felt the touch of His chastening Rod:
It is lives like hers--let us humbly avow-That plead for Man at the throne of God. (47)

Introductory remarks at her lectures similarly typically directed her middle-class audiences to gaze upon Livingston's body-scarred and battered by her clashes with the agents of vice and immorality--as evidence of her moral uprightness and
affirmation of her title as the Angel of Chinatown. A suggested introduction to Livingston began: "She today is fighting a great
fight and she has spent her life's blood on this battle line. Again and again in her fearless determination to rescue a girl she
has been beaten and stabbed and her life is still sought by those of the underworld whom she has foiled again and again and
whose profits she has decreased. She comes to you today sick and broken as the result of the last brutal attack made upon
her life." (48) During a 1916 campaign, press materials sent by the New York State Woman Suffrage Party described her
having a "record of 300 children saved, but it has meant being kicked down cellar stairs, thrown from a roof, stabbed in a
dark hallway, but always she has saved the child she sought." (49)
To more socially and politically conservative audiences, this narrative of Christian martyrdom used by Livingston's supporters
perhaps softened the changing contemporary image of the American woman suffrage movement. The confrontational tactics
of the New York suffragettes and the charismatic firebrand Alice Paul, who from 1913 to 1914 began to split from NAWSA to
form the independent Congressional Union for Woman Suffrage (CU), created a new media image of the suffragette as
youthful and militant. By 1916 the CU had transformed itself into the Woman
Woman's Party and then in 1917 into the National
Woman
Woman's Party (NWP) to focus solely on the passage of a constitutional amendment for woman suffrage. The NWP
distanced itself from NAWSA and its staid tactics of focusing on passing individual state-level woman suffrage amendments
and instead purposefully promoted itself as the new modern, youthful heirs to the suffrage movement with its bold vision for
national reform. Through its controversial and highly publicized strategy of direct confrontation--street marches, open-air
meetings, pickets, arrests, and hunger strikes--the NWP garnered great attention for the cause. (50)
This particular Christian-inflected narrative of Livingston's bodily sacrifice legitimized her confrontational tactics of challenging
the municipal authority of the police and mayor as necessary for the Angel of Chinatown to combat the twin immoral forces of
public graft and prostitution. This Christian narrative also worked to desexualize her image and distance her current role as a
social reformer and martyr from her past as a sexual deviant and delinquent sullied by her intimacies with Chinese men.
Physical descriptions of Livingston, whether in newspaper articles, suffrage materials, or lectures, overwhelmingly focused on
her injuries such as those following her encounter with a cadet that left her "with a splintered jaw and seven teeth gone." (51)
Press descriptions often stressed her physical frailty and diminutive size in order to liken her to David in challenging the
Goliath that is municipal corruption and forced prostitution. "She is a small woman
woman, scarcely over five feet in height," began
one account. "At her best she would weigh one hundred and ten pounds. At present, she would scarcely turn the scales at
ninety. ... Were it not for this fire in her, Rose Livingston would now be dead." (52) In her stage appearances on behalf of the
suffrage movement her body became not an object for sexual consumption but a weapon to be used for the purposes of
Christian combat against the forces of social evil and municipal corruption.
Livingston in her public role as a spokeswoman for the movement, however, was quick to challenge this image of her as a
Victorian heroine or Christian saint. She chafed at the public's attempt to associate her with this outmoded sentimental
reform tradition based on Christian salvation alone. (53) A 1912 New York Times article, for example, commented on
Livingston's speech as anything but genteel, refusing "to tone down her speech to make things easier for her audience. She
used none of the euphemisms so common in social evil discussions, but kept her talk homely and sharp with the vernacular
of the gutter." (54) She mocked the proselytizing efforts of the Victorian rescue homes, saying, "I don't go in to visit these
girls and give them a tract and say 'God bless you,' and invite them around to take tea with me. That's not my kind of work."
(55) Instead, she told her audience of her physical confrontations with angry pimps and dirty cops, even going to the lengths
of serving arrest warrants to protect and rescue prostitutes.
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Livingston's bravado in the face of personal danger earned her the admiration of many suffrage leaders outside of New York
City. Ethel R. Vorce, corresponding secretary of the Ohio Woman Suffrage Association, became one of Livingston's most
ardent supporters shortly after one of her early lecture tours through Ohio in 1913. Following Livingston's return to New York
City, Vorce wrote the Laidlaws to convey her excitement about the lecture tour's positive effect on the suffrage campaign,
"having stirred up the entire town and doing more practical good for suffrage than any one other speaker of whom I know."
(56) To Livingston she sent a special note of encouragement: "Don't forget when you get back to the girls and your rescue
work that by giving your message to the world you can save the generations yet to come, my dear you must keep up your
talking. You have converted many people to suffrage here and you can do likewise in other places." (57)
Despite Vorce's clearly high regard for Livingston's life and work against prostitution, the relationship between the two
women--as it often was between Livingston and her older and wealthier suffragette supporters--was not an equal one.
Rather, these relationships were phrased in familial terms, with the older suffragettes expecting Livingston to play the
subordinate role of a dutiful "daughter" in relation to her more maternal suffragette superiors. Vorce, for example, referred to
Livingston as "dear little Rose" in her correspondences with the Laidlaws and addressed Livingston in her letters as "my dear
little girl." Similarly, Loa Scott, a fellow suffragette in Ohio, opened her description of Livingston's activities in Ohio to Harriet
Laidlaw with "I know you want to hear how your little girl is getting along." (58) In her relationship with her benefactors
Livingston took on a similar submissive familial role. In letters she called Harriet "sweet mother" and James "Daddy" (59) In a
message to Harriet Laidlaw, Livingston expressed her fond sentiments to her benefactors: "'Tell her I love her, and can't wait
till I get back to see her and dear Daddy'--and then she goes off with the words--'May precious Daddy, the dearest Daddy,
the dearest Daddy under Heaven.'" (60) While Livingston was convalescing in New Jersey during the summer of 1913, her
care attendant, Laetitia Gordon Smith, wrote to inform James Laidlaw of Livingston's medical care and progress, nothing that
she "has difficulty in retaining her food, thus continuing the feeling of weakness." In closing Smith added that "Rose is in bed
near me asking me to tell you that she is feeling tonight lonely for her Daddy Laidlaw, but she consoles herself by having in
full view on the washstand your photograph and Mrs. Laidlaw's which we recovered from the Montclair Times office two days
ago." (61)
Framed in terms of familial affection, these infantilizing remarks also worked to contain or suppress Livingston's sexual
identity as a former prostitute as well as unmistakably denoted her status in the movement as socially subordinate to and
financially dependent on her more wealthy and older suffrage patrons. Although Livingston successfully raised funds for her
antiprostitution work during the course of her lecture tours, all money earmarked for her care was sent to the three-person
committee of Sanderson, Chamberlain, and Laidlaw to be administered as they saw fir. Throughout her association with the
Laidlaw, Livingston regularly submitted to this committee of three-person committee of Sanderson, Chamberlain, and Laidlaw
to be administered as they saw fit. Throughout her association with the Laidlaws, Livingston regularly submitted to this
committee of three, sending them reports of her daily work and requests for funds for living and medical expenses. (62) when
Livingston was hospitalized in March and April 1914, for example, the Laidalws paid for Livingston's stay at the presbyterian
Hospital in New York City.
These expressions of endearment and subordination also reflected suffrage leaders' private views of Livingston, view that
influenced their strategies for touring and showcasing the firebrand in her antiprostitution/prosuffrage lectures. A letter of
introduction by a suffrage leader who hosted Livingston's lectures at his church began by praising her abilities as a speaker
for the suffrage cause as" young woman with a fine spirit and a burning message" but then added a warning. "Miss
Livingston is little more than a mere child, in her intellectual development, and quite temperamental and therefore, should be
closely supervised if she is to be used as a speaker for suffrage. Yet, properly directed, she can be made a tremendous force
for the cause." (63) Likewise, another activist pronounced that "Rose is a temperamental child, and willful, and has to be
managed like a small impresario; but she is very lovable, and responds in a wonderful way to affection." (64) Yet this suffrage
leader worried about Livingston's future and feared that, without constant monitoring by a more experienced suffrage
spokesperson, Livingston would be easily swayed by the unscrupulous who sought to exploit her story. These descriptions of
Livingston as highly temperamental and childlike may reflect middle-class suffrage leaders' own biases in judging the
working-class Livingston as uncouth and uneducated, someone whose impassioned oratory appealed to audiences through
raw emotion rather than careful reasoning and debate. It also worked to justify the perpetuation of a mother-daughter or
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superior-inferior relationship that placed suffrage leaders in positions of authority over Livingston.
Throughout her tours suffrage leaders made efforts to pair Livingston with a more seasoned and educated suffrage
spokesperson such as Ethel Vorce. A letter from Gertrude Leonard, chairman of the executive board of the Massachusetts
Woman Suffrage Association, to the presidents of local suffrage leagues throughout the state, for example, announced the
availability of Livingston and Vorce to speak "for a month of meetings in Massachusetts beginning January 11th," 1914. In
her promotion of Livingston Leonard wrote: "The dramatic strength of her appeal can scarcely be exaggerated." The
accompanying biography of Vorce, in contrast, listed her education and career background as a news reporter and
settlement house worker who possessed a thorough knowledge of the suffrage cause from her long history of participating in
international woman suffrage conferences and organizing and directing the Woman Suffrage Party in Cuyahoga County in
Ohio. (65) While Livingston moved audiences with her riveting stories of fighting prostitution and police corruption in
Chinatown, Vorce delivered the more carefully crafted and reasoned speech connecting the causes of suffrage and
antiprostitution work. To an audience in New Castle, Pennsylvania, for example, Vorce offered the point that "while a girl
must be 18 years old before she can marry, that in some states, the age of consent is 10 years, and in others, 16 years."
With female intervention into the legislative process, Vorce suggested, "such as evil as the white slave traffic could not
exist." (66)
Livingston's insistence on employing the vernacular of the street when addressing her audience was one of the many ways
she attempted to assert control of her own voice and image on the suffrage lecturing circuit. Her graphic and ardent oratory
effectively captured her audiences, shocking their sense of bourgeois comfort and morality and allowing the "average
woman or girl who lives in a protected home to know something of the tragedy which surrounds those women whom we are
wont to refer to as 'the underworld.'" (67) Her fervor and strong-willed independence--so important in establishing her social
reformer authority and authenticity to her middle-class audiences--could be forgiven by her suffragette handlers even if it
meant an unpolished performance that "cannot be relied upon to tell a straightforward logical story" as long as the rambling
narrative continued to make the suffrage cause its priority. (68) However, as Livingston's successes on the lecture circuit
brought her more celebrity, her obedience to the authority of her suffragette supporters was sorely tested. As she
increasingly focused her lectures on her spiritual conversion, personal redemption, and the anti-white
white slavery cause, her
suffragette handlers discovered the ongoing difficulties with containing the highly charismatic Livingston and employing her
sensational story as a useful strategy for gaining the vote.
Indeed, audiences were often more easily captivated and moved by Livingston's stories of abduction, sexual imprisonment,
and clashes with the police and mayor, which eclipsed the message of woman suffrage. On 12 July 1913 members of the
Stenographers' Association of Cincinnati, after hearing Livingston's lecture in their city, adopted a resolution in support of
Livingston's work in New York City to present to Mayor Gaynor. The resolution, beginning with "whereas, Miss Rose
Livingston, Angel of Chinatown, is imperiling her life and safety in service to our country by rescuing little girls held as slaves
in Chinatown and other dives in the East, from a fate far worse than death," also spoke of a five-hundred-dollar bounty
placed on Livingston's head by her enemies and ended with a demand for better police protection. The cause of woman
suffrage did not merit a mention in this resolution. (69)
As Livingston's success on the suffrage lecture circuit rose, she increasingly asserted her own control over her stage
appearances. Her acts of independence, however, were not taken well by her handlers. Instead, her suffragette supporters
more often interpreted her efforts at self determination as acts of childish impudence or disrespect, not the legitimate and
reasoned actions of a fellow equal in the movement. In 1915, while conducting a lecture tour through Pennsylvania
sponsored by that state's suffrage association, Livingston complained of fatigue and poor health and asked to eliminate the
two meetings scheduled for Easton. Vorce, who was accompanying Livingston on the trip, questioned Livingston's claims of
illness and suggested another possible reason for calling for the cancellation. "The real truth is that Rose arrived in
Philadelphia in a very bad mood. She failed to make a good impression, as was quite natural, with the exception of the
Chester and Sunday meetings which were excellent, and is her old force. The child is suffering from consciousness of lies
over misdoings and of course has not the control or philosophy necessary to keep herself." (70) Vorce further complained
that Livingston's increased popularity as a lecturer "likened her to Billy Sunday," a popular fire-and-brimstone evangelical
preacher of the day, and "now instead of talking of her work she devotes more time to Heaven, Hell not straight suffrage."
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(71) Vorce urged the Laidlaws to remove Livingston from the suffrage campaign circuit, concluding sadly, "I doubt if ever I go
on another tour with Rose--while I had her affection, I could control and influence her but as that seems entirely to have
disappeared I believe the best interests of the cause will no longer be served by such a combination." (72)
In a confidential letter to Carrie Chapman Catt, Vorce was even more candid in pointing out Livingston's flaws as a
representative of the movement. Claiming that Livingston's "state of mind at present is actually savage," Vorce suggested
that it would be better for the movement if "her audience could always be confined to the Women's Missionary & W.C.T.U.
type." (73) More galling to Vorce was Livingston's defiance of Vorce's "wishes or advice," her bragging that she could
command crowds larger than the more prominent and established suffragettes such as Dr. Anna Howard Shaw, and her
demand to be "paid 100.00 per speech." (74) As she had with the Laidlaws, Vorce pressed for Livingston's temporary
removal from the campaign: "For the best interests of our Cause I suggest that for the present she be not asked to speak
after a time, if the inflated idea she now has of her self, subsides, she may once more bring us many converts." (75)
Livingston's brash style may have shocked her white middle-class audiences in Pennsylvania, Massachusetts, and Ohio.
Yet the prevalent fear of sexual predation of young white girls and women by Chinese men was even more immediate and
alarming. This period's mainstream press reported frequently on the participation of Chinese men in the underground world
of commercialized vice in the Chinatown neighborhood, particularly around activities such as prostitution, opium smoking,
and gambling. While non-Chinese also engaged in these activities, the link between the city's male Chinese population and
these vices was historically naturalized through popular representations such as cartoons and literary accounts. Sketches
appearing in popular publications such as Harper's Weekly and Frank Leslie's Illustrated repeated the message contained in
J. W. Alexander's American Opium Smokers--Interior of a New York Opium Den, which showed Chinese opium smoking to
be a threat to white Americans. Alexander depicts a menacing-looking Chinese proprietor bringing out the opium-smoking
paraphernalia for his white clientele (Fig. 1). (76) An 1883 illustration entitled New York City--The Opium Dens in Pell and
Mott Streets--How the Opium Habit Is Developed made the link between opium smoking and white slavery more explicit by
showing Chinese kidnapping a white female victim in the Chinatown neighborhood. Opium pipes and other smoking
accoutrements surround the central image of the abduction(Fig. 2). (77)
[FIGURE 1 OMITTED]
These popular narratives of Chinatown, which commercialized sex and sexual danger, supported the federal Chinese
exclusion laws as well as called into question the wisdom of allowing Chinese men free mobility throughout the city and
nation. The ubiquitous presence of Chinese-owned businesses such as "chop suey" restaurants and hand laundries
throughout the city' particularly alarmed whites and often became die targets of criminal investigations into prostitution,
abduction, and opium smoking. The gruesome murder of nineteen year old Elsie Sigel allegedly by her Chinese lover in
1909, for example, spurred the city's police and social reformers to police the Chinatown neighborhood and the city's
Chinese-owned establishments in an effort to curb social relations between Chinese men and white women. (78) Journalists
such as William Brown Meloney shocked New Yorkers with their exposes on the lives of Chinatown's white female
residents, like Lulu Shu, who seemed to be trapped in her second-floor tenement flat on Pell Street, "a coop with a wiremeshed window" in which she "has lived for eighteen years." (79)
This period's social reformers continued their surveillance and monitoring of Chinese-owned restaurants and laundries in the
city for evidence of illegal and immoral activities. A 1911 report on prostitution in Harlem by an investigator for the Committee
of Fourteen, an antiprostitution social reform agency, identified a "chop suey joint" on the corner of Eighth Avenue and 15th
Street as having "small rooms and much disorderly conduct is witnessed there." (80) The following year a report entitled
"Houses and Resorts of Prostitution in the City of New York," authored by investigators for the Committee of Fourteen, listed
Chinese-owned businesses such as Li He Laundry at 200 West 28th Street and a "chop suey restaurant" at 38 West 29th
Street as disorderly. (81)
The mass circulation of these popularized narratives of a sexual yellow peril led many desperate parents to consider the
possibilities of white female abduction by Chinese men when confronted with die heartbreaking tragedy of a missing
daughter. The disappearance of Jessie McCann of Brooklyn in early December 1912 led to a series of desperate searches
through the Coney Island and Sheepshead Bay sections of the borough as well as in die city of Philadelphia. According to
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the New York Times, police assigned "a squad of detectives" to follow leads furnished by Livingston, "who had said she was
confident she knew where Miss McCann could be found." (82) None of Livingston's suggestions, however, panned out. But
with Livingston's network of religious supporters, desperate parents with the assistance of their ministers sought her
assistance and advice to locate their missing daughters. In the fall of 1914 Pastor T. J. Ferguson asked Livingston to
investigate the mysterious disappearance of sixteen-year-old Mary Loudon from Mechanicsburg, Pennsylvania. Although no
evidence was present to suggest that she traveled to New York City, let alone the lower Manhattan Chinatown neighborhood,
the parents and pastor nonetheless directed their inquiry to Livingston and that neighborhood. (83)
In Livingston's white slavery lectures across the country the depictions of New York's Chinatown and the city's Chinese
male residents as sexual threats to white womanhood enabled activists to promote the suffrage cause to socially and
politically conservative audiences, particularly church-going audiences who were especially won over by her Christ-like public
persona as the Angel of Chinatown engaged in a moral crusade against forced prostitution and sexual assault. If the notion
of equal rights between the genders was too modern for these more conservative audiences, the notion of moral protection
for the young and innocent was certainly not. The image of the lascivious Chinese male laborer as a menace to urban
working girls and women fit neatly within familiar, established Victorian narratives of male seduction and female innocence.
Even as New Yorkers at the dawn of the twentieth century struggled with accepting new modern modes of female sexuality
that widened the bounds of feminine respectability, expressions of mutual attraction and affection between Chinese and
whites remained difficult to accept. Interracial sexual relations--particularly between white women and Chinese men-continued to be defined in the earlier Victorian terms of masculine assaults on vulnerable white girls and women.
As argued by suffrage leaders such as Laidlaw and Vorce, woman suffrage provided the means to extend much-needed
moral and legal protections to the weaker sex or, more specifically, die perceived weaker members of die female sex--poor
and working-class girls and women--from sexual predation. (84) Regardless of how well these seasoned veterans
articulated die connections between the causes of suffrage and anti-white
white slavery
slavery, it was the magnetic and electrifying
presence of Rose Livingston--the self-proclaimed ex-Chinatown prostitute and social reformer--on die suffrage lecture circuit
that brought formerly indifferent and conservative audiences into the movement's fold. Livingston's speeches on the "white
white
slavery evil," couched in the alarmist rhetoric of a sexual Yellow Peril, made the suffrage cause take on a more immediate
urgency that jolted her audiences into action. Yet the sensationalist narratives of white slavery and Livingston herself
proved difficult for movement leaders to contain and channel consistently for the suffrage cause. Her refusal at times to play
die role of die obedient daughter to her wealthy suffrage benefactors and her frank disdain of Victorian sentimentalism tested
the movement's leaders' abilities to frame and harness her life story and work for the promotion of woman suffrage.
Livingston's relationship with her wealthy suffrage benefactors reflects the difficulties in closing the class divide within the
movement even as her supporters espoused a political platform that would address die concerns of die city's wage-earning
women. Through Livingston, die city's middle- and upper-class leaders found a means to connect with the poor, workingclass women of New York's Chinatown. Even so, the strategic mobilization of Livingston's Chinatown anti-white
white slavery
crusade by New York's suffrage leaders did more to smooth over die political differences of socially conservative and
Progressive middle-class and upper-class men and women through a commonly shared moral outrage than to carve
permanently a powerful place for former sex workers into die suffrage movement. For working-class women with
transgressive sexual pasts such as Livingston, full social acceptance and equal political participation in the movement
remained just beyond their reach.
I am immensely grateful for the thoughtful comments and suggestions offered by a number of scholars in the research and
writing of this essay and indebted to Kathy Peiss, Timothy Gilfoyle, and Chad Heap for their many insights.
(1) "How Rose Livingston Works in Chinatown," New York Times, 3 December 1912, 5. "Cadet" was the common term for
the young man responsible for seducing and entrapping a young woman to prostitute herself.
(2) Willard Travell, MD, "Physician's Report," 1 July 1912, Series IV, White Slavery
Slavery, Folder 92 Correspondence, JulyDecember 1912, Harriet Wright (Burton) Laidlaw Papers, Schlesinger Library (hereafter HWLP-SL).
(3) Police commissioner to Robert Adamson, secretary to the mayor, 21 May 1912, Box GWJ-54, Mayors' Papers, New York
City Municipal Archives (hereafter MP-NYCMA).
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(4) Mayor William J. Gaynor to Mary Beard, 11 June 1912, Box GWJ-92, MP-NYCMA.
(5) "How Rose Livingston Works in Chinatown."
(6) "Woman
Woman Criticizes Gaynor," New York Times, 10 December 1912, 7.
(7) Robert Adamson to Harriet Wells, secretary of the Woman Suffrage Party, 20 May 1912, Series IV, White Slavery
Slavery,
Folder 91 Correspondence, May-June 1912, HWLP-SL.
(8) Recent studies examining the late-nineteenth- and early-twentieth-century "white
white slavery
slavery" panic over kidnapping and
trafficking of white women include Christopher Diffee, "Sex and the City: The White Slavery Scare and Social Governance
in the Progressive Era," American Quarterly 57, no. 2 (2005): 411-37; Mara L. Keire, "The Vice Trust: A Reinterpretation of
the White Slavery Scare in the United States, 1907-1917," Journal of Social History 35, no. 1 (2001): 5-41; Frederick K.
Grittner, White Slavery
Slavery: Myth, Ideology, and American Law (New York: Garland, 1990); David J. Langum, Crossing over
the Line: Legislating Morality and the Mann Act (Chicago: University of Chicago Press, 1994), 30-33; Judith Walkowitz, City
of Dreadful Delight: Narratives of Sexual Danger in Late-Victorian London (London: Virago, 1992); David Pivar, Purity
Crusade: Sexual Morality and Social Control, 1868-1900 (Westport, Conn.: Greenwood, 1973); Paul Boyer, Urban Masses
and Moral Order in America, 1820-1920 (Cambridge, Mass.: Harvard University Press, 1978), 189-219.
(9) Some of these woman suffrage-sponsored publications on white slavery include Clifford G. Roe, What Women Might
Do with the Hallot: The Abolition of the White Slave Traffic (New-York: National American Woman Suffrage Association
Headquarters, n.d.); Mrs. T. P. Curtis, The Traffic in Women (Boston: Woman Suffrage Party of Boston, n.d.); and Katharine
Houghton Hepburn, Woman Suffrage and the Social Evil (New York: National American Woman Suffrage Association,
n.d.).
(10) Luise White
White, "Prostitutes, Reformers, and Historians," Criminal Justice History 6 (1985): 202-3.
(11) George Anthony Peffer, If They Don't Bring Their Women Here: Chinese Female Immigration before Exclusion (Urbana:
University of Illinois Press, 1999).
(12) Mary Ting Yi Lui, Chinatown Trunk Mystery: Murder, Miscegenation, and Other Dangerous Encounters in Turn-of-theCentury New York City (Princeton, N.J.: Princeton University Press, 2005), 45, 81-110.
(13) NAWSA was Pounded after the 1890 reconciliation and merger of two other woman suffrage associations--the National
Woman Suffrage Association (NWSA) and the American Woman Suffrage Association (AWSA). For histories of the
woman suffrage movement see Ellen Carol DuBois, Feminism and Suffrage: The Emergence of an Independent Women's
Movement in America, 1848-1869 (Ithaca, N.Y.: Cornell University Press, 1978); Aileen S. Kraditor, the Ideas of the Woman
Suffrage Movement, 1890-1920 (New York: Columbia University Press, 1965); Nancy Cott, The Grounding of Modern
Feminism (New Haven, Conn.: Yale University Press, 1987); Anne Firor Scott, One Half the People: The Fight for Woman
Suffrage (Philadelphia; Lippincott, 1975).
(14) Ellen Carol DuBois, "Working Women, Class Relations, and Suffrage Militance: Harriot Stanton Blatch and the New York
Woman Suffrage Movement, 1894-1909," in Unequal Sisters: A Multicultural Reader in U.S. Women's History, cd. Vicki L.
Ruiz and Ellen Carol DuBois (New York: Routledge, 1994), 235. For more on Blatch's remarkable life and career see Ellen
Carol DuBois, Harriot Stanton Blatch and the Winning of Woman Suffrage (New Haven, Conn.: Yale University Press,
1997).
(15) On the history of the WTUL see Nancy Schrom Dye, As Equals and as Sisters: Feminism, the Labor Movement, and the
Women's Trade Union League of New York (Columbia: University of Missouri Press, 1980); and Meredith Tax, 'The Rising of
the Women: Feminist Solidarity and Class Conflict, 1880-1917(New York: Monthly Review Press), 95-124.
(16) Harriet Laidlaw, "Organizing to Win by the Political District Plan (1914)," in Public Women, Public Words: A
Documentary History of American Feminism, ed. Dawn Keetley and John Pettegrew (Lanham, Md.: Rowan and Littletield,
2002), 179.
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(17) "The Free-Lane Soul Saver of New York's Slums," fort Wayne Journal-Gazette, 28 January 1917, 2.
(18) "Rose Livingston," n.d. Because the memo mentions the "Massachusetts campaign" 1 would date the document to
around 1914. Series IV, White Slavery
Slavery, Folder 90 Lists of expenses, hospital and doctors' statements, biographical
information, 1912-16, n.d., HWLP-SL.
(19) Mayor to H. B. Laidlaw, Esq., 28 May 1912, Series IV, White Slavery
Slavery, Folder 91 Correspondence, May-June 1912,
HWLP-SL.
(20) Mayor Gaynor to Mary Beard, 11 Juno 1912, Series IV, White Slavery
Slavery, Folder 91 Correspondence, May-June 1912,
HWLP-SL.
(21) Frank Moss to Nathan A. Smyth, 11 June 1912, Gabrielle Stewart Mulliner to Rose Livingston, 15 June 1912, and
Nathan Smyth to Harriet Laidlaw, 24 June 1912, 12, Series IV, White Slavery
Slavery, Folder 91 Correspondence, May-June 1912,
HWLP-SL.
(22) Elizabeth Hartley to Nathan A. Smyth, 26 May 1912, Series IV, White Slavery
Slavery, Folder 91 Correspondence, May-June
1912, HWLP-SL.
(23) Eleanor Keller to Harriet Laidlaw, 18 June 1912, Series IV, White Slavery
Slavery, Folder 91 Correspondence, May-June
1912, HWLP-SL.
(24) Bertha Rembaugh to Nathan A. Smyth, 28 May 1912, Series IV, White Slavery
Slavery, Folder 91 Correspondence, May-June
1912, HWLP-SL.
(25) Moy Gum to Mr. Gardner, 8 November 1912, Series IV, White Slavery
Slavery, Folder 92 Correspondence, July-December
1912, HWLP-SL.
(26) Ibid.
(27) William Osgood Morgan to Harriet Laidlaw, 27 December 1912, Series IV, White Slavery
Slavery, Folder 92 Correspondence,
July-December 1912, HWLP-SL. It is unclear who Garner was, since the letter suggests that Harriet Laidlaw and Garner did
not know each other.
(28) Chas. F. Gong to Harriet Laidlaw, 29 December 1912, Series IV, White Slavery
Slavery, Folder 92 Correspondence, JulyDecember 1912, HWLP-SL.
(29) John Willard Travell m Harrier Laidlaw, 5 July 1912, and James Laidlaw to Nathan Smyth, 23 July 1912, Series IV,
White Slavery
Slavery, Folder 92 Correspondence, July December 1912, HWLP-SL.
(30) "How Rose Livingston Works in Chinatown."
(31) Rose Livingston, "Report for the Month of July," Series I, Woman
Woman's Suffrage, Part B, Box 6, Folder 103 New York,
HWLr-SL.
(32) Rose Livingston, "Report for the Month of August," Series I, Woman
Woman's Suffrage, Part B, Box 6, Folder 103 New York,
HWLP-SL.
(33) Report dated 24 March 1910, Series IV, White Slavery
Slavery, Folder 89 Hattie Rose Correspondent, HWLP-SL.
(34) Ibid.
(35) "woman
woman Criticizes Gaynor."
(36) Ibid.
(37) "Paints Horrors of Woman
Woman's Life in Underworld," New Castle News, 6 April 1915, 6.
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(38) "Reviewed Steps Taken," newspaper clipping, n.d., Series, IV, White Slavery
Slavery, Folder 92 Correspondence, JulyDecember 1912, HWLP-SL.
(39) Letta M. Turnbull to James Laidlaw, 25 March 1913, Scales IV, White Slavery
Slavery, Folder 93 Correspondence, JanuaryMarch 1913, HWLP-SL.
(40) Mrs. John A. Church to James Laidlaw, 24 March 1913, Series IV, White Slavery
Slavery, Folder 93 Correspondence,
January-March 1913, HWLP-SL.
(41) Harriet Taylor Upton, president, Ohio Woman Suffrage Association to Harriet Laidlaw, 8 March 1913, Series IV, White
Slavery
Slavery, Folder 93 Correspondence, January-March 1913, HWLP-SL.
(42) Marian H. Brewster to Rose Livingston, 26 March 1913, Series TV, White Slavery
Slavery, Folder 93 Correspondence,
January-March 1913, HWLP-SL; and James M. Gates to Rose Livingston, 2 June 1913, Series IV, White Slavery
Slavery, Folder
94 Correspondence, April-June 1913, HWLP-SL.
(43) The story was serialized in two parts in McClure's, December 1912, 121 -45, and January 1913, 253-60.
(44) Harriet Burton Laidlaw, "My Little Sister," Survey, 3 May 1913, 201.
(45) Ibid.
(46) For a good discussion of Anti-suffrage activism sec Jane Jerome Camhi, Women against Women: American AntiSuffragism, 1880-1920(Brooklyn: Carlson Publishing, 1994).
(47) Elias Lieberman, "Rose Livingston: A Reverie," New York Times, 22 December 1912,14.
(48) "Suggested Introduction of Rose Livingston," 2. This description of her bodily torment is repeated in numerous public
accounts of her work. See, for example, "The Livingston Case," n.d., in The Woman Voter Series IV, White Slavery
Slavery,
Folder 90 Lists of expenses, hospital and doctors, statements, biographical information, 1912--16, HWLP-SL.
(49) Publicity materials sent by the New York State Woman Suffrage Party, "Miss Rose Livingston," 9 October 1916, Series
IV, White Slavery
Slavery, Folder 90 Lists of expenses, hospital and doctors' statements, biographical information, 1912-16,
HWLP-SL.
(50) For more on Alice Paul and die National Woman
Woman's Party see Linda G. Ford, Iron-Jawed Angels: The Suffrage Militancy
of the National Woman
Woman's Party, 1912-1920 (Lanham, Md.: University Press of America, 1991); Nancy F. Cott, "Feminist
Politics in the 1920s: The National Woman
Woman's Party," Journal of American History 71, no. 1 (1984): 43-68; Christine A.
Lunardini, From Equal Suffrage to Equal Rights: Alice Paul and the National Woman
Woman's Party, 1910-1920 (New York: New
York University Press, 1986).
(51) "How Rose Livingston Works; in Chinatown."
(52) "The Free-Lance Soul Saver of New York's Slums."
(53) For a discussion of approaches to urban moral reform in the nineteenth and early twentieth centuries see Boyer, Urban
Masses.
(54) "How Rose Livingston Works in Chinatown."
(55) Ibid.
(56) Ethel R. Vorce to Harriet Laidlaw, 5 March 1913, Series IV, White Slavery
Slavery, Folder 96 Correspondence, January-April
1913, HWLP-SL.
(57) Ethel R. Vorce to Rose Livingston, 5 March 1913, Series IV, White Slavery
Slavery, Folder 96 Correspondence, January-April
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1913, HWLP-SL.
(58) Loa E. Scott to Harriet Laidlaw, 18 February 1913, Folder 93 Correspondence, January-March 1913, HWLP-SL.
(59) Rose Livingston to Harriet Laidlaw, n.d., Series IV, White Slavery
Slavery, Folder 96 Correspondence, June-December 1914,
HWLP-SL.
(60) Mabel C. Willard to Harriet Laidlaw, 1 March 1914, Series IV, White Slavery
Slavery, Folder 96 Correspondence, January-April
1914, HWLP-SL. She also used the term "Daddy" with other older male supporters such as James Gates, an attorney and
male suffrage activist, in Chagrin Falls, Ohio. James signed all of his letters to Livingston with "Daddy." James M. Gates to
Rose Livingston, 2 June 1913, 26 June 1913, Series IV, White Slavery
Slavery, Folder 94 Correspondence, April-June 1913,
HWLP-SL.
(61) Laetitia Gordon Smith to James Laidlaw, 3 July 1913, Series IV, White Slavery
Slavery, Folder 95 Correspondence, JulyDecember 1913, HWLP-SL.
(62) Receipts and lists of expenses, n.d., Series IV, White Slavery
Slavery, Folder 90 Lists of expenses, hospital and doctors'
statements, biographical information, 1912-16, HWLP-SL.,
(63) George Hugh Birney, n.d., Series IV, White Slavery
Slavery, Folder 93 Correspondence, January-March 1913, HWLP-SL.
(64) Gertrude Halladay Leonard to Harriet Laidlaw, 2 March 1915, Series IV, White Slavery
Slavery, Folder 98 Correspondence,
1915, HWLP-SL.
(65) Gertrude Halladay Leonard, 16 December 1914, Series IV, White Slavery
Slavery, Folder 97 Correspondence, JuneDecember 1914, HWLP-SL.
(66) "Paints Horrors of Woman
Woman's Life in Underworld."
(67) "Nellie D. Merrell to Miss Treat, Cleveland, Ohio, n.d., Series IV, White Slavery
Slavery, Folder 94 Correspondence, April-June
1913, HWLP-SL.
(68) Ibid.
(69) Laura C. Haeckl to James Laidlaw, 30 July 1913, Series IV, White Slavery
Slavery, Folder 95 Correspondence, JulyDecemeber 1913, HWLP-SL.
(70) Ethel Vorce to James Laidlaw, 27 April 1915, Series IV, White Slavery
Slavery, Folder 98 Correspondence, 1915, HWLP-SL.
(71) Ibid.
(72) Ibid.
(73) Ethel R. Vorce to Carrie Chapman Catt, n.d., Series IV, White Slavery
Slavery, Folder 94 Correspondence, April-June 1913,
HWLP-SL. Although the correspondence does not bear a date, the contents strongly indicate it was written at the conclusion
of the 1915 Pennsylvania tour.
(74) Ibid.
(75) Ibid.
(76) See, for example, J. W. Alexander, American Opium Smokers--Interior of a New York Opium Den Harper's Weekly, 8
October 1881.
(77) Frank Yeager. Mew York City--The Opium Dens in Pell and Mutt Streets--How the Opium Habit Is Developed, Frank
Leslie's Illustrated Newspaper, 19 May 1883.

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(78) Lui, Chinatown Trunk Mystery, 17-20, 47-51, 52-54, 73-80.


(79) William Brown Meloney, "Slumming in New York's Chinatown," Munsey's Magazine 41 (September 1909): 825.
(80) S. Robinson to J. H. Hooke, 23 March 1911, 3-4, Box 1, Folder General Correspondence, January-May 1911,
Committee of Fourteen Papers, New York Public Library.
(81) "Houses and Resorts of Prostitution in the City of New York," 1 February 1912, 8-9, Box 28, Folder 1912, Committee of
Fourteen Papers, New York Public Library.
(82) "Boston Finds Girl like Miss M'Cann," New York Times, 12 December 1913, 1.
(83) Missing persons flyer from Harrisburg, Pennsylvania, 19 October 1914, and report by Rose Livingston, 26 May 1915,
Series I, Woman
Woman's Suffrage, Part B New York, Box 6, Folder 103, HWLP-SL. For more on missing person requests see
Harrison T. McCann to James Laidlaw, 11 December 1913, Series IV, White Slavery
Slavery, Folder 95 Correspondence, JulyDecember 1913, HWLP-SL. See also Mrs. W. A. Winters to Rose Livingston, 28 January 1914, Mrs. Rubie A. Young to
Rose Livingston, 26 February 1914, .and Jane Arlin to Rose Livingston, 28 February 1914, Folder 96 Correspondence,
January-April 1914, HWLP-SL.
(84) For an interesting discussion of class and white racial privilege in the late-nineteenth- and early-twentieth-century
suffrage movement see Louise Newman, White Women's Rights: The Racial Origins of Feminism in the United States (New
York: Oxford University Press, 1999).
MARY TING YI LUI
Yale University
COPYRIGHT 2008 University of Texas at Austin (University of Texas Press).

2013 Gale, a part of Cengage Learning. All rights reserved. www.accessmylibrary.com


The AccessMyLibrary advertising network includes: womensforum.com GlamFamily

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Basis of
conclusion that
defendant was
loitering for
the purpose of
prostitution

The JVTA: Not Just Bad For


Trafficking Victims
By Kate Zen for TitsandSass

On Wednesday, the Justice for Victims of Trafficking Act of 2015 [S. 178] passed
through the Senate by a unanimous vote of 99-to-0. It is being celebrated as a heroic
example of bipartisan cooperation for humanitarian advancement. However, if the
bill continues to pass through the House, it will be delivering its system of
protection over tapped wires, via an increasingly militarized police force.

Introduced by Senator John Cornyn (R-TX), the majority whip, the Justice for Victims
of Trafficking Act of 2015 is nothing short of a carceral mandate. Its primary
function is to allocate funds and special privileges to law enforcement and
immigration control and to legitimize the adoption of new surveillance technologies,
purportedly in order to combat child exploitation.
Democratic opponents delayed the bill in committee for six weeks, debating over
whether fines collected from criminal offenders could go towards funding abortion
services for trafficking survivors. They argued that Republican lawmakers were
trying to throw an anti-abortion rider into the bill, extending the Hyde Amendment
of 1976 (which prohibited federal funding of abortion), to apply to non-taxpayer
funds. To break the stalemate, Senate majority leader Mitch McConnell (R-KY) put
pressure on Democrats to pass the bill by asserting that until the legislation has
gone through the Senate, he would not schedule the confirmation of Loretta Lynch,
the first black woman to be nominated for Attorney General.

On Tuesday, given much pressure on both sides to move the bill along,
a compromise was reached in which a separate pool of money would be created for
survivor health services, in addition to money collected from criminal offenders for
non-health-related services. The fund stream for survivor health services would
already be covered by the Hyde Amendment, and thus could not be used for
abortions for trafficking survivors. However, the language of the bill as it was passed
ensures that the Hyde Amendments reach will not extend further to private
funding.

While Democrats in support of reproductive justice and civil liberties have been
vocal on the legislations language about abortion, they have paid less attention to

the ways in which this bill also promotes the militarization of police, expands the
carceral system, and funds the use of wiretapping and
other surveillance technologies by immigration control, with little transparency or
oversight. The amended legislation contains some benevolent provisions for
increasing victim compensation and funding social services for survivors of human
trafficking. However, in addition to these victim-centered services, there is a clear
law-enforcement-centered strategy in the bill for addressing human trafficking,
which prioritizes the expansion of funding for law enforcement and immigration
control.
Several sections of the bill demonstrate the way in which the bill is designed to
enhance the militarization of police:
1) Recruiting wounded and retired veterans into special Hero Corps to
rescue child trafficking victims[Sec. 302]Former combatants, who have been
trained to kill on sight with deadly firearms, and experience a high incidence of
post-traumatic stress disorder, will now be exposed to highly sensitive and complex
situations, predominantly in neighborhoods already vulnerable to police brutality.
Furthermore, these heroes are misinformed by Hollywood tropes about pimps and
victims, and egged on to perform rescue missions with frustrated fantasies of
military heroism. They will be patrolling communities that are not their own, where
more often than not it is shared economic coercion, not violent abduction, which
links the pimp or trafficker to his or her victim, revealing a much more nuanced
picture of exploitation than the one in which these heroes may be prepared to
intervene.

2) Funding wiretapping initiatives [Sec. 203] and a Cyber Crimes Center [Sec.
302] specializing in computer forensics and internet surveillance technologies
to be used by the U.S. Immigration and Customs Enforcement (ICE), which will
be authorized to collaborate with the Department of Defense to monitor the
telecommunications and activities of immigrants, border residents, and foreign
nationals, allegedly in search of foreign viewers of U.S. child pornography. According
to the bill, the Cyber Crimes Unit (CCU) also enhances ICEs ability to combat cyber
economic crime, digital theft of intellectual property, [and] illicit e-commerce,
among other economic crimes on the internet.
The use of moralizing language to justify increased funding for policing and
surveillance is not a new phenomena laws banning pornography in the UK coincide
with increased government surveillance of the private lives of its citizens over
webcam. The many clauses related to child pornography in the JVTA bill also
allocate funding to investigative capacity building in the cybersecurity units of

Immigration and Customs Enforcement, as well as funding for enforcement


operations and training for Federal, State, local, tribal, and foreign law
enforcement agency personnel upon request. The Child Exploitation Investigations
Unit, which will be created for this function, is tasked with data collection, and
required to collaborate with immigration control through the Department of
Homeland Security, and the Department of Defense through the Hero Corps. [Sec.
890] Whether or not JVTS ultimately passes with this language intact, it introduces a
precedent for funding for the next wave of militarized surveillance to be justified
through the moral panic of child pornography, riding quietly on politically popular
bills on issues like human trafficking.

3) Prioritizing funding for paying law enforcement salaries and creating new
units of judicial prosecutorsequipped with the authority, resources, and expert
training to investigate and monitor potential victims of human trafficking, in
partnership with health and social service organizations that are encouraged to
collaborate with law enforcement, sharing information to enable the ongoing
supervision of people involved in trafficking cases, regardless of criminal charge.

The bill would also federalize End Demand measures against child prostitution by
charging underage sex workers clients as human traffickers, whether or not they
know their sex worker is a minor. The Justice For Victims of Trafficking Act as it
passed in the Senate also includes the language of another federal trafficking bill, the
Stop Advertising Victims of Exploitation (SAVE) Act, including advertising as a
severe trafficking crime [Sec. 118]. It will charge advertising venues with soliciting
and promoting trafficking whether or not the venues know theyre hosting ads for
underage workers, thus attacking spaces sex workers use to find clients, potentially
driving the industry further underground. Furthermore, it treats all crimes related
to human trafficking as violent crimes, including instances where the trafficker is
another youth engaged in the sex trade over the age of eighteen, who may be giving
advice or protection to the minor. The bill mandates that law enforcement monitor
all human traffickers as violent criminals. Those who will be monitored under this
bill will for the most part be poor people of color with complex relations to
engagement in informal markets for survival who are already subject to
disproportionate criminalization and surveillance.
Youth of color, migrants of varying status, homeless women and trans people in low-
income communities of color make up the vast majority of people who are arrested
for or rescued from street-based activities, including engagement in the drug
trade, sex trade, or human trafficking. According to participatory action research

conducted by the Young Womens Empowerment Project in Chicago, it is often law


enforcement that is most exploitative and harmful to youth who may otherwise be
classified as trafficking victims. Furthermore, there is a dire lack of non-
discriminatory, consistent, and caring social services, especially for queer and trans
youth who are homeless and/or engaged in street trades. Sadly, Senator Patrick
Leahys (D-Vermont) amendment to the JVTA, which would have added funding for
services for runaway and homeless youth, was overturned, falling short of the 60
votes needed to pass. This amendment contained the sort of funding that would
have actually addressed the issue of domestic human trafficking, providing
preventative care to youth who are most at-risk.
Rather than allocating additional money to law enforcement, a better measure
would be to improve existing social services for youth and all people who have to
engage in informal economies to survive, including child welfare and protection
services, which are notorious for abuse; a better foster care system that addresses
such abuses; supportive housing for the chronically homeless and disabled; better
domestic violence shelters; and support for migrants of various status who
encounter labor abuse.

The story of the Justice for Victims of Trafficking Act is a familiar one. After 9/11,
the Bush administration was quick to use national tragedy to push through the
Patriot Act, which increased military power and police surveillance and resulted in
grave violations of civil liberties and privacy in the name of counterterrorism. The
first round of federal anti-trafficking legislation under the Bush administration came
hand in hand with anti-terrorism funding. It supported a common federal agenda of
expanding U.S. military funding, while lending a moral gloss of humanitarianism to
the project by painting the U.S. as a heroic leader in the fight against global crime.
Time and time again, since 2004, federal legislation aimed towards expanding
military operations has been couched in the heroic imagery of anti-trafficking, while
at the same time these xenophobic laws exacerbate labor conditions for immigrants
and thus actually increase the incidence of exploitation and trafficking. The
simultaneous dismantling of welfare safety nets also serves to push low-income
youth into the survival sex trades, while the expansion of mass incarceration splits
apart the low-income communities they call home. The expansion of the carceral
state directly contributes to human trafficking, exacerbating the socioeconomic
conditions which force some youth to engage in survival sex.

Rather than focusing on these economic push factors that lead to trafficking, the
Justice for Victims of Human Trafficking Act, like most other Republican-sponsored
anti-trafficking legislation, focuses on a simplistic narrative of villainy and heroism,

whereby the state legitimizes the expansion of its police power in order to rescue
innocent victims from sadistic criminals. Sadly, the real picture of underaged
survival sex work is much more complicated, requiring social service-centered
funding that promotes economic justicejust the kind of legislation that failed to be
passed by amendment in the current bill.

Legal Studies Paper No. 2007-47


December 2007

Reconceptualizing Approaches to Human


Trafficking: New Directions and
Perspectives from the Field(s)

Professor Kathleen Kim


Professor Grace Chang
This paper can be downloaded without charge from the
Social Science Research Network (SSRN) electronic library at:
http://ssrn.com/abstract=1051601

Copyright (c) 2007 Board of Trustees of the Leland Stanford Junior University
Stanford Journal of Civil Rights & Civil Liberties
August, 2007
3 Stan. J.C.R. & C.L. 317
LENGTH: 14162 words
ARTICLE: Reconceptualizing Approaches to Human Trafficking: New Directions and Perspectives
from the Field(s)
NAME: Grace Chang* and Kathleen Kim**
SUMMARY:
... Scholars and advocates across several movements have attempted to develop approaches to
human trafficking that would best serve the needs and support the rights of all migrant workers and
survivors of trafficking. ... This Article also evaluates U.S. policies and practices across multiple
sectors that relate to human trafficking including prostitution, labor migration, and sexual and reproductive health rights. ... " A similar restriction applies to international organizations receiving
governmental funding to combat HIV/AIDS, requiring organizations, as a condition of receiving
funding, "to have a policy explicitly opposing prostitution and sex trafficking. ... The antiprostitution pledge restricting grants to anti-trafficking organizations also limits funding to domestic
and international SRH organizations focusing on HIV/AIDS prevention, women's health and family
planning. ... The Trafficking Act and the U.S. government's "s Global AIDS Act of 2003 both forbid funding to any group that does not explicitly oppose prostitution and sex trafficking. ... Such
groups include public health advocacy organizations, grassroots organizations that encourage migrant worker organizing, formal and informal unions of domestic workers, sex workers and agricultural workers, and anti-border enforcement groups that advocate for safe migration across international borders for all individuals. ... Certainly more work is needed to counter these divisions and
facilitate the critical and logical links between immigrant rights, labor rights, sex worker rights,
sexual and reproductive health, and anti-trafficking advocacy, organizing and scholarship. ...
TEXT:
[*318]
Introduction
Scholars and advocates across several movements have attempted to develop approaches to human
trafficking that would best serve the needs and support the rights of all migrant workers and survivors of trafficking. Many U.S.-based and international groups organizing for immigrant, labor, sex
worker, and sexual and reproductive health rights, understand the need for collaborations among
them. Yet, such connections have been largely obstructed by the U.S. federal government approach
to trafficking, which emphasizes sex trafficking over other forms of labor. At a number of recent
conferences, participants from across these movements have articulated the obstacles posed by the
U.S. federal approach both to their work and to these potential alliances. n1
1

These ongoing discussions reveal a growing consensus among advocates that current U.S. antitrafficking policies and practices that focus on law enforcement and anti-prostitution efforts detrimentally impact the rights of trafficked persons. Advocates increasingly witness a prosecutorial approach to trafficking narrowly focused on criminalizing prostitution as a purported means to stop
trafficking. Meanwhile, enforcement agencies largely neglect the broader phenomenon of trafficking into agriculture, domestic service, restaurants, hotels, manufacturing, and construction. Nongovernmental organizations assisting trafficked persons domestically and internationally [*319]
report that the U.S. emphasis on criminal enforcement and anti-prostitution policies curtails the
rights of trafficked persons voluntarily engaged as sex workers, and marginalizes trafficked persons
in non-sex related industries. These policies and practices inhibit a rights-based approach that respects the agency and choice of adults to decide how to organize their lives.
This Article discusses the local and global consequences of the United States government approach toward human trafficking. This Article also evaluates U.S. policies and practices across multiple sectors that relate to human trafficking including prostitution, labor migration, and sexual and
reproductive health rights. By providing an overview of current issues, problems, and concerns
within the anti-trafficking movement and within related rights-based movements, this Article seeks
to facilitate the development of a new anti-trafficking paradigm. A new anti-trafficking paradigm is
already emerging out of collaborations and discussions between anti-trafficking and human rights
advocates from diverse fields. n2 This paradigm evaluates trafficking within a broader framework
and provides the foundation for a cross-sectoral alliance to challenge mainstream approaches to
human trafficking and to create new strategies to protect the rights of trafficked persons, migrant
workers, and women against the negative impact of United States policies and practices.
Part I of this article begins with a background of current U.S. policies and procedures addressing
human trafficking. Noting the narrow conceptual focus of current U.S. anti-trafficking guidelines on
primarily anti-prostitution and criminal law enforcement efforts, Part I proposes a more expansive
reconceptualization of trafficking as it relates to multiple sectors - prostitution, labor migration and
reproductive and sexual health. In furtherance of this reconceptualization, Part II draws from the
experience of human rights advocates to analyze the impact of U.S. policies and practices on the
rights of trafficked persons within each sector. This Article finds that current U.S. policies and procedures addressing trafficking divert attention away from underlying root causes of trafficking, and
deprive certain trafficked persons of full access to immigration and labor protections. Moreover,
related U.S. policies on labor migration and reproductive and sexual health operate to restrict the
rights of not only trafficked persons, but more generally migrant [*320] workers and women. Part
III of this Article summarizes recommendations to advance the rights of trafficked persons through
a movement-based alliance of human rights advocates across multiple sectors.
I. The Conceptual Framework
A. U.S. Anti-Trafficking Policies and Practices: A Narrow Conceptual Focus
Organizations throughout the world report that U.S. anti-trafficking policies and practices operate
with a narrow conceptual focus. As a consequence, advocates and other commentators have observed the erosion of trafficked persons' rights and diminishing service provisions for trafficked persons in a variety of sectors. n3 Specifically, U.S. anti-trafficking policies have increased the criminalization of prostitution while neglecting the broader reality of trafficking into farms, homes, restaurants, and other sites. The result is the conflation of human trafficking with prostitution. This
2

conflation appears ideologically driven, arising out of new and emerging alliances between some
anti-prostitution feminists and right-wing evangelical Christians, who have recently entered
HIV/AIDS service provision, human rights, and advocacy worlds. As a result, anti-trafficking advocates and service providers, particularly those working with clients in the sex sector, report negative
consequences on their ability to serve clients, on the health and status of clients and on the rights of
women in the sex sector in the U.S. and internationally. n4
Several examples indicate an emerging conflation of human trafficking and prostitution by the
U.S. government. First, recent policy measures under the Bush Administration purport a unique
"link" between prostitution and trafficking. A recent State Department publication entitled "The
Link Between Prostitution and Sex Trafficking" suggests this perspective. n5 This document states
that trafficking is both a cause and effect of prostitution, yet makes this assertion based on reports
that are unsubstantiated by valid research methods and data. A number of scholars have contested
these assertions and challenged the research upon which the claims are based, and have called upon
the [*321] government to support more reliable research in the formulation of public policy. n6
Even a Government Accountability Office (GAO) study released in July 2006 reports that U.S.
government estimates of global human trafficking are "questionable" and "in doubt because of
methodological weaknesses, gaps in data, and numerical discrepancies." n7
The purported "link" between prostitution and trafficking damages on-going efforts to prevent
trafficking and protect the rights of trafficked persons. This unproven "link," which lends support to
the Bush Administration's focus on abolishing prostitution as the cornerstone to its anti-trafficking
approach, has diverted attention away from an assessment of structural factors that facilitate trafficking such as poverty, discrimination, and civil and political unrest of certain developing regions.
The Bush Administration has also employed this misguided policy to de-fund organizations that refuse to adopt a policy statement against prostitution.
In February of 2002, President Bush authorized National Security Presidential Directive 22
(NSPD 22), identifying trafficking as an important national security issue. n8 According to the Bush
Administration, the relationship between trafficking and organized crime poses a transnational
threat and raises terrorism concerns. n9 Though NSPD 22 is a classified document, and therefore,
unavailable to the public, a Department of Justice report on anti-trafficking efforts cites to NSPD 22
and asserts without empirical evidence that prostitution is "the driving force behind sex trafficking."
n10 The report emphasizes official presidential policy to heighten criminalization and enforcement
against prostitution as the primary method to reduce human trafficking and further states: "The
United States opposes prostitution and any related activities... as contributing to the phenomenon of
trafficking in persons. These activities are inherently harmful and dehumanizing. The United States
government's position is that these activities should not be regulated as a legitimate form of work
for any human being." n11
In 2003, the U.S. Congress amended the Trafficking Victims Protection Act of 2000 to prohibit
international non-governmental organizations (NGO) receiving governmental funding to support
their anti-trafficking work, from [*322] using the funds to "promote, support or advocate for the
legalization or practice of prostitution." n12 The funding restriction requires organizations to "state
in either a grant application, a grant agreement, or both, that it does not promote, support or advocate the legalization or practice of prostitution." n13 A similar restriction applies to international
organizations receiving governmental funding to combat HIV/AIDS, requiring organizations, as a

condition of receiving funding, "to have a policy explicitly opposing prostitution and sex trafficking." n14
Initially, the restriction applied only to foreign NGOs. In 2004, however, the Department of Justice issued an opinion letter supporting the application of these restrictions to U.S. grantees. n15
Accordingly, in 2005, Congress again amended the TVPA, expanding the restriction to domestic
NGOs. n16 The restriction, now known as the "gag rule" or "anti-prostitution pledge" by antitrafficking human rights activists, raised immediate First Amendment concerns from advocates and
lawmakers. n17 First, the "pledge" compels U.S. NGOs to affirmatively adopt a government viewpoint. Simply having "no position" on the issue is not permissible under the rule. This conflicts with
Supreme Court precedent disallowing the government from compelling speech in support of its
viewpoint as a condition of participating in a government program. n18 Second, by requiring recipients of government funding to take the "pledge" as an organization-wide policy, the "pledge" restricts the way in which the organization chooses to utilize their non-governmental and private
funding. As decided by the Supreme Court in Rust v. Sullivan, though the government may attach
conditions to the disbursement of subsidies, funding schemes must "leave the grantee unfettered in
its other activities." n19
[*323] The ambiguity of the words "promote, support or advocate" and the lack of concrete
guidance from administration officials about their meaning led concerned NGOs to change their
policies and practices. Many organizations even curtailed services and support for sex workers. n20
Other NGOs refused to comply with the "gag rule" and chose to forego U.S. funding, in recognition
of the damaging impacts that policies and public statements against prostitution have on their abilities to serve those in the sex sector. A letter addressed to President Bush in May 2005, signed by
public health, human rights, faith-based and community-based organizations, stated that such policies will "exacerbate stigma and discrimination against already marginalized groups" and make it
"difficult or impossible to provide services or assistance to those at risk ... further driving them underground and away from lifesaving services." n21 Thus, organizations in Brazil rejected $ 40 million of U.S. global AIDS funds, declaring that the restrictions would counter the very programs that
have proven effective in reducing the spread of HIV in Brazil. n22 Such programs include rightsbased and harm reduction approaches to prostitution that are designed to de-stigmatize and empower women as they move towards better health and self-sufficiency.
Two lawsuits have challenged the constitutionality of the anti-prostitution pledge: Alliance for
Open Society International, Inc. and Open Society Institute v. United States Agency for International Development, n23 filed in the U.S. District Court for the Southern District of New York, and
DKT International, Inc. v. United States Agency for International Development, n24 filed in the
U.S. District Court for the District of Columbia. Both lawsuits alleged that the pledge violates the
organizations' First Amendment right to free speech by requiring them to adopt the government's
point of view in order to receive funding. n25 The lawsuits also charged that the pledge is unconstitutionally [*324] vague, thereby permitting arbitrary enforcement. n26 Moreover, the suits pointed
to the public health danger presented by the pledge because it undermines efforts to provide preventative health information and services to sex workers who are at high risk of contracting and spreading HIV/AIDS. n27
Both courts agreed that the pledge requirement was an unconstitutional violation of free speech
rights under the First Amendment. Judge Victor Marrero of the Southern District of New York and
Judge Emmet G. Sullivan of the District Court of Washington, D.C. granted the respective plain4

tiffs' preliminary injunctions against the enforcement of the pledge in order to prevent irreparable
harm. The pledge, Judge Sullivan wrote, implied a "demand that the organization become a mouthpiece for government policy" even if using its own funds. n28 Judge Marrero of the Southern District, moreover, opined that "the Supreme Court has repeatedly found that speech, or an agreement
not to speak, cannot be compelled or coerced as a condition of participation in a government program." n29
In spite of recent court rulings, these policies have already caused significant damage. The court
rulings do not apply to foreign NGOs receiving U.S. funding for anti-trafficking work. n30 Domestically, funding has shifted to more right-wing, religious organizations who support the U.S. government's policy; resources for U.S. NGOs that do not subscribe to these policies remain scarce.
The shift in funding detrimentally impacted the work of organizations experienced in serving victims of trafficking but unable or unwilling to comply with the federal restrictions. Some progressive
advocates witnessed the removal of funding from their organizations, while more conservative,
church-based agencies, less-experienced in anti-trafficking work but willing to adopt the federal
anti-prostitution stance received new funding. Domestic and international groups that oppose current U.S. policies often face vicious attack and fear blacklisting by the U.S. government and other
sources of funding.
The conflation of human trafficking with prostitution also resulted in the narrow application of
the federal Trafficking Victims Protection Act (TVPA) to sex trafficking cases. In 2005, the Department of Justice reported that over two-thirds of ninety-one human trafficking cases were cases
of sex trafficking. n31 [*325] This information directly conflicts with empirical reports from service providers who have found that sex trafficking cases comprise only one-third of their caseload.
For example, a recent study by the Coalition to Abolish Slavery and Trafficking reports that clients
trafficked to Los Angeles are subject to exploitation in many fields, including domestic work (40
percent), factory work (17 percent), sex work (17 percent), restaurant work (13 percent), and servile
marriage (13 percent). n32 These striking numbers refute the government's assertion that most trafficking is for prostitution.
Many advocates questioned the effectiveness of the government's anti-trafficking policy and
practice in serving all human trafficking victims. These advocates note that in the period since the
passage of the TVPA in 2000 to 2004, only 616 people benefited from the law through receipt of a
T visa. n33 Notably, a 2006 Government Accountability Office study found: "There is also a considerable discrepancy between the numbers of observed and estimated victims of human trafficking." n34
Advocates speculate that trafficking victims in industries other than the sex sector could account
for this gap. Law enforcement agents who equate trafficking with prostitution often do not view
those in other industries as victims of trafficking. Furthermore, the prosecutorial focus of sex trafficking cases alienates migrant rights advocates, who fear that anti-trafficking work invites excessive prosecution in immigrant communities while ignoring the harm these communities face as exploited workers in domestic work, agricultural work, and in industrial and factory work. For example, leaders from Domestic Workers United, a collective of migrant-rights organizations supporting
domestic workers in New York, expressed alienation from the anti-trafficking movement. n35 The
focus on sex trafficking also alienates women's rights and human rights advocates, who are increasingly concerned with the stigmatizing and rights-depriving impact these anti-prostitution policies
have on women around the world. For example, Sex Workers Across Borders (SWAB), a grassroots
5

group of sex workers and allies, states a concern that anti-trafficking measures are used to police
and punish female, male, and transgender migrants and sex workers, and to restrict their freedom.
n36
[*326]
B. Reconceptualizing Human Trafficking: A Broader Framework
Reconceptualizing human trafficking within a broader framework of labor migration, human rights,
women's rights, sexual and reproductive health rights, and globalization may counteract the negative impacts of U.S. polices and advance the rights of trafficked persons.
The development of a field of understanding around the subject of human trafficking has progressed through various stages. The notion that only women were trafficked into prostitution was
expanded in the 1990s with the realization that both men and women were being trafficked into
other labor sectors. Both the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children (Palermo Protocol) n37 and the Trafficking Victims Protection Act
(TVPA) n38 address the larger phenomenon of trafficking in persons. Anti-trafficking and human
rights advocates, however, agree that an effective conceptual framework to combat human trafficking, must consider trafficking as inextricably linked to globalization and trends in labor migration.
n39
Anti-trafficking and human rights advocates now consider it absolutely essential for antitrafficking service providers to expand their work beyond the "3 Ps" of prevention, prosecution and
protection. n40 While the "3 Ps" approach assisted many potential and actual lives of victims, it
does not address underlying social structures that facilitate human trafficking. These advocates recognize that governments, whose agendas conflict with the goals of advocates, support the "3 P" approach and the prevailing discourse on human trafficking. Thus, civil society must actively seek the
means to lead in developing new understandings and a new discourse on human trafficking.
This new discourse must be grounded in understandings of the processes of globalization, and
the coercive nature of most migration within this context. The new discourse supports a framework
that views trafficking as coerced migration or exploitation of migrant workers for all forms of labor,
including a broad spectrum of work often performed by migrants, such as manufacturing, agriculture, construction, service work, servile marriage and sex work. This definition of trafficking rests
upon an understanding that many migrant workers [*327] are coerced to migrate because of economic devastation caused by neoliberal policies in their home countries. While this displacement
does not imply physical force or deception, it recognizes coercion created by the destruction of subsistence economies and social service states through neoliberal policies imposed on indebted sending countries by wealthy creditor nations. n41
The new discourse encompasses an understanding of migrant workers' experiences as inclusive
of many forms of labor, either simultaneously or in sequence. In Canada, for example, women recruited and trafficked as domestic workers have often faced pressure to enter servile marriages
within their employers' households and families. In the United States, it is not uncommon for workers engaged in manufacturing to hold second and third jobs in service work. Finally, people's experiences of being trafficked may span a broad spectrum from consent to coercion. While a person
may initially participate with ostensible "knowledge and consent" to being transported for work, she

may later wish to leave the work or particular employment site, yet be held captive by an employer.
Within the new discourse, such a person would be recognized as a victim of trafficking. n42
The focus on "sex trafficking" obscures the U.S. government's responsibility for compelling
people to leave their countries. For example, structural adjustment and other neoliberal policies imposed on the Philippines has forced the mass migration of women and men. International financial
institutions such as the World Bank and International Monetary Fund impose structural adjustment
policies as preconditions for indebted nations to obtain loans. n43 The ravages of these policies
have destroyed subsistence economies and social services; as a result, over 3,100 people leave the
Philippines each day. Government agencies in sending countries such as the Philippine Overseas
Employment Administration facilitate this mass migration in such explicit, concrete ways that it is
difficult to view this movement as anything short of government-sponsored human export. In turn,
receiving countries such as the United States and Canada fashion immigration, labor, and welfare
laws in such a way that migrant workers remain super-exploitable as temporary workers, ineligible
for most rights and protections afforded to citizens in these "host" countries. n44
Through these policies, the U.S. government and many other nations promote human trafficking
and labor exploitation, while simultaneously creating the conditions of poverty through neoliberal
economic policies that [*328] compel people to migrate. The selective criminalization of "sex trafficking" ensures that the root causes of all forms of human trafficking, and state responsibility for or
complicity in these structural causes, remain unchallenged. n45
In sum, the underlying root causes for rendering human beings vulnerable to human trafficking
are complex and regionally diverse and cannot be addressed by a "one size fits all" strategy. The
development of a new discourse on trafficking, therefore, requires a critical analysis of the current
U.S. policy and its consequences that integrates multiple perspectives from varied fields of human
rights, women's rights, labor rights and health rights. An integrated and cross-disciplinary framework launches a reconceptualization of trafficking that considers root causes and the role of U.S.
policies in hampering efforts to combat trafficking.
II. A New Discourse on Trafficking
U.S. anti-trafficking policies significantly impact three distinct areas: prostitution, labor migration,
and sexual and reproductive health. A new discourse on trafficking seeks to understand the consequences of U.S. policies within each area on efforts to prevent trafficking and to protect the rights of
trafficked persons.
A. Prostitution and Sex Work
As discussed in Part I, U.S. governmental policies and practices addressing human trafficking conflate trafficking with prostitution. This characterization severely hampers the work of antitrafficking advocates and damages the rights of trafficking survivors. The negative consequences of
this conflation on anti-trafficking efforts is visible both domestically and internationally.
1. Impacts of Policies
Various policy measures contribute to the conflation of trafficking and prostitution, in definition
and in subsequent practice. In addition, administrative agencies substantively and procedurally utilize these policies to enforce the criminalization of prostitution, rather than to combat human traf-

ficking. Examples include the definition of trafficking in persons pursuant to the Trafficking Victims Protection Act (TVPA); the Trafficking in Persons annual report issued by the U.S. State Department; and the End Demand legislation.
First, a historical tension exists with regard to the relationship of trafficking to sex work. The
TVPA, the chief U.S. anti-trafficking statute, defines "human [*329] trafficking" more narrowly
than the established international definition. As discussed earlier, the TVPA focuses on sex trafficking, which conflicts with the broader definition created under international agreements such as the
2000 Palermo Protocol. The Palermo Protocol defines trafficking as follows:
(a) "Trafficking in persons" shall mean 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 n46 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. 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; n47
The definition in the Palermo Protocol is perhaps the first international definition or reformulation of "trafficking in persons" since the 1949 UN Convention for the Suppression of the Traffic in
Persons and the Exploitation of Prostitution of Others. The 1949 Convention focused exclusively on
prostitution and considered all prostitution, whether voluntary or forced, to be trafficking. The Palermo Protocol recognizes the existence and possibilities of both voluntary and forced prostitution
and indeed leaves "prostitution" intentionally ambiguous to allow for different interpretations. Participants noted that the Palermo Protocol includes but does not define the phrase "exploitation of
prostitution of others or other forms of sexual exploitation" because delegates to the Palermo negotiations could not reach a consensus on the meaning of this phrase. While all delegates agreed that
involuntary participation in prostitution constitutes trafficking, the majority of delegates rejected the
idea that voluntary participation by adults in prostitution amounts to trafficking.
Thus, the language of the Palermo Protocol emerged from a compromise reached by the delegates to ensure the greatest number of signatories. Delegates agreed to leave the phrase undefined
but included the following explanation in interpretive note 64:

The travaux preparatoires should indicate that the Protocol addresses the exploitation of the prostitution of others and other forms of sexual exploitation only in the context of trafficking in persons.
The terms "exploitation of the prostitution of others" or "other forms of sexual exploitation" are not
defined in the Protocol, which is therefore [*330] without prejudice to how States Parties address
prostitution in their respective domestic laws. n48
The strength of this language and the lack of an explicit definition of the "exploitation of prostitution of others or other forms of sexual exploitation" allows for governments to develop their own
approaches and definitions with respect to prostitution and sexual exploitation.
The Global Alliance Against Trafficking in Women (GAATW) has suggested that "if a government insists on using language such as "sexual exploitation,' we should encourage them to use

the following definition so that sexual exploitation, like any other form of labour exploitation, requires the use of force or coercion... ." For example:

"Sexual exploitation" means the participation by a person in prostitution, sexual servitude, or the
production of pornographic materials as a result of being subjected to a threat, deception, coercion,
abduction, force, abuse of authority, debt bondage or fraud. Even in the absence of any of these factors, where the person participating in prostitution, sexual servitude or the production of pornographic materials is under the age of 18, sexual exploitation shall be deemed to exist. n49
The language of the TVPA does not allow for such broad interpretation and autonomy of other
states in defining trafficking. This raises the concern that the TVPA overrides the possibilities allowed for and intended by the delegates in creating the terms of the Palermo Protocol.
Furthermore, the TVPA language supplants these more expansive definitions of trafficking
through concrete means such as international "prevention" measures mandated, monitored and enforced by the U.S. State Department's Trafficking in Persons (TIP) report. n50 The TIP report ranks
countries' performance in preventing trafficking at Tier 1, 2, or 3, based on their compliance with
U.S. approved anti-trafficking measures. The U.S. government sanctions countries with lower tier
rankings, while higher tier countries may receive funding from the U.S. to aid their anti-trafficking
efforts. The strongest determinants for rankings include a country's level of focus on prostitution,
endorsement of the prostitution/trafficking conflation and emphasis on prosecution.
One example of the U.S. government's bias exists in the case of Korea. Advocates reported that
in legal terms, the Korean government understands human trafficking only to mean prostitution.
This interpretation did not change with the introduction of the Palermo Protocol, and only grew
worse after introduction of the TVPA, and Korea's initial ranking as a Tier 3 country in [*331]
2001. The Korean government responded by establishing an inter-ministry task force to combat
trafficking and subsequently introduced a prostitution prevention law. Despite protests by sex
worker rights groups, Korea has instituted a sweeping anti-prostitution law, the first of its kind since
1961. The reform includes prison sentences and fines for traffickers and for women in the sex industry. The Korean government, encouraged by its subsequent ranking at Tier 1, claims it will
eliminate prostitution by 2007. This illustrates the large-scale negative impact of the antiprostitution and prosecution-oriented framework ofthe TVPA and other U.S. trafficking policy
globally. n51
2. Impacts of "End Demand" Legislation and Practices
The conflation of prostitution and trafficking has also led to the faulty idea that ending "demand"
for commercial sex will lead to a reduction in or eradication of trafficking.
This concept has been incorporated into proposed legislation such as the "Bill to End Demand
for Sex Trafficking Act" of 2005. n52 While this bill failed to pass through Congress by itself, sections of it were included in the Trafficking Victims Protection Reauthorization Act (TVPRA) of
2005. n53 The "End Demand" section of the TVPRA 2005 diverts attention and federal funds to
programs aimed at the prosecution, shaming, and "re-education" of clients of sex workers.

Specifically, the TVPRA 2005 provides funds to states and local jurisdictions for programs to
"investigate and prosecute persons who purchase commercial sex acts" n54 and to "educate persons
charged with, or convicted of, purchasing or attempting to purchase commercial sex acts." n55 The
latter is to be accomplished largely through "john schools," such as those established in 1995 in San
Francisco, where clients of street prostitutes attend courses about the purported negative effects of
prostitution on sex workers, their customers, and society. n56 Research has revealed that john
schools have not been effective in [*332] discouraging clients from continuing to purchase commercial sex and have only resulted in moving sex work from one area to another. n57
Advocates critique the underlying premises of "end demand" policies as well as their negative
impacts on both trafficked persons and sex workers. For example, the Sex Workers Project of the
Urban Justice Center and the Network of Sex Work Projects states:
"Demand" for sex work is not a predominant driving factor for trafficking, which is driven by
poverty, race, and gender inequities. The term "demand" also refers to the legitimate concerns
raised by migrants and labor rights advocates who address the issues relating to the need in the
global north for exploitable labor and services. However, this narrow focus of the term in the context of sex work represents a dangerous move towards policies that, under the guise of protecting
sex workers, is another way of undermining sex workers' autonomy and causing more harm to them.
n58
Thus, advocates criticize "end demand" as misguided and ineffective in targeting the true causes
of trafficking, i.e., the demand of states and employers in the global north for low-wage migrant labor, as well as diverting attention and services from trafficked persons while undermining the rights
of sex workers. Advocates note that the "end demand" sections of the TVPRA of 2005 provide little
funding for services and support for trafficked persons, while authorizing most of the funding for
law enforcement and "end demand" programs not yet proven to be effective. n59 Advocates also
suggest that the "end demand" focus does not serve to curtail commercial sex or trafficking, nor
help to identify those who may be vulnerable in either or both groups: "A decrease in the number of
people in the unlawful commercial sex sector, including those who are trafficked, can only be
achieved with an increase in services to vulnerable groups and victims, and in research on causes
and prevention methods." n60
Moreover, critics of the end demand focus observe that it does not serve the rights and needs of
trafficked persons, yet it severely hinders those of sex workers in a number of ways: moving sex
workers off the streets to the underground, making them more vulnerable to violence and abuses
and less likely to have access to health and outreach services, including critical [*333] HIV/AIDS
and STI education and prevention. n61 Sex workers in the United States identify not only clients as
a source of violence but law enforcement agents as abusers, commonly violating their human rights
through harassment and assault. n62 Thus, advocates such as the Urban Justice Center's Working
Group on Sex Work and Human Rights argue that "giving law enforcement more power [through
end demand policies] makes sex workers even more vulnerable." n63
3. Impacts of "Raid and Rescue" Practices
Government practices, particularly the dominant model of "raid and rescue" tactics in and outside
of the United States, negatively impact both survivors of trafficking and migrant workers voluntarily engaged in sex work.

10

A recent "raid and rescue" case in the United States, dubbed Operation Gilded Cage, n64 clearly
illustrates these concerns. The incident was reported as the largest "sex trafficking" case in the history of the United States. In July of 2005, law enforcement agents raided ten brothels in San Francisco they had identified as suspected trafficking sites and "rescued" over 120 women. Authorities
then detained the women at a military base in California; federal officials questioned the women to
determine their status as possible victims of trafficking before calling in trained service providers
twenty-four hours later. By the time advocates arrived, federal officials had already decided that the
majority of the women were not legal victims of trafficking, and placed them in immigration detention.
Advocates struggled to convince officials to interpret the law more broadly in screenings of the
remaining women, in direct conflict with the narrow federal framework. In this case and others, advocates report that when clients identify themselves as voluntary or consenting participants in their
migration or employment at any point, authorities deem them ineligible for benefits under T-visas
as legal victims of trafficking. If clients do not fit traditional conceptions of involuntary or nonconsenting victims, they may instead face deportation, like many of the women "rescued" in the
Operation Gilded Cage case. n65
Advocates also comment that often they can only secure certifications from law enforcement
agents enabling their clients to apply for T-visas if their [*334] clients cooperate exactly with law
enforcement during the investigation and prosecution process. n66 Authorities deprived one woman
"rescued" in Operation Gilded Cage of trafficking victim status, citing that she was "uncooperative," after she decided that she did not wish to cooperate with law enforcement and instead, return
to Korea. Authorities also denied her the ability to return to Korea and held her in jail as a material
witness for the case. n67
4. Conclusion
These examples raise a number of concerns and suggestions regarding the conflation of prostitution
and trafficking by US governmental anti-trafficking policies and practices:
a) The U.S. government's focus on trafficking for prostitution; its assumption that it must be involuntary in all cases; and the explicit, exclusive goal of prosecuting trafficking when equated with
prostitution denies protection to exploited laborers who are consenting adults in sex work and many
other industries. Those who migrate for work may participate voluntarily in any industry yet still
face unlawful exploitation through labor rights abuses, poor working conditions and debt bondage.
U.S. and international anti-trafficking policies and practices must recognize this exploitation consistently in the identification and treatment of all victims of trafficking.
b) Victims of trafficking face many threats to their safety and encounter numerous challenges to
their livelihoods, health, and rights not necessarily addressed or secured through cooperation with
law enforcement agents in the prosecution of trafficking. Thus, law enforcement should offer victims of trafficking autonomy, greater rights, and increased protections if they choose to cooperate
with prosecution efforts. Victims of trafficking also need greater access to benefits, regardless of
their cooperation or the form of trafficking they have survived.
B. Labor Migration

11

This section discusses the role of labor migration within the U.S. anti-trafficking framework. U.S.
policies and practices focusing on sex trafficking marginalize the rights of workers trafficked into
non-sex-related industries. The emphasis on sex trafficking and criminalization of prostitution perpetuates the widespread exploitation of migrant workers by failing to reform restrictive immigration
policies that deny migrant workers the labor protections afforded to citizen workers.
[*335]
1. Impact of policies
As a starting premise, it is important to recall the original intent of the TVPA to not only protect
victims of forced or coerced prostitution, but to also guarantee legal relief to migrant workers subjected to slave-like working conditions in factories, farms, private homes, restaurants, hotels and
any other labor industry. Several noteworthy cases prompted the passage of the Trafficking Victims
Protection Act, including the 1995 El Monte, California case involving seventy-two Thai garment
workers forced and coerced to labor in sweatshops, some for up to seventeen years. n68 A 1997
case convicted eighteen traffickers for forcing hearing-impaired Mexicans to peddle trinkets in New
York City, Los Angeles and Chicago. n69
In light of these types of forced labor cases, the TVPA recognizes in its Purposes and Findings
that: "Trafficking in persons is not limited to the sex industry. This growing transnational crime also
includes forced labor and involves significant violations of labor, public health, and human rights
standards worldwide." n70 Furthermore, the TVPA's expansion of the law's definition of forced labor protects all migrant workers coerced to endure exploitive labor conditions through physical or
non-physical means, including a trafficker's threats to deport a worker or to harm a worker's family
members. Such non-physical means also include the use of psychological and "non-violent" coercion. n71 For example, the TVPA's conference report encompasses the protection of domestic
workers compelled to work under threats that their family members may suffer "banishment, starvation, or bankruptcy." n72
The TVPA has succeeded in the prosecution of several high profile trafficking cases involving
non-sex industries. For example, United States. v. Kil Soo Lee, n73 commonly known as the Daewoosa case, involved approximately 250 Vietnamese women and men forced to work in a garment
factory in American Samoa, under threats of deportation, severe economic hardship, and constant
employer surveillance. n74 In another case, U.S. v. Ramos, farmworkers from Mexico were forced
to labor in Florida agricultural fields through threats of violence and debt bondage. n75
[*336] Despite the occurrence of these labor trafficking prosecutions, however, the Department
of Justice reports that from the years 2001-2005, it pursued a total of only twenty-three labor trafficking cases as compared with sixty-eight sex trafficking cases. The Department of Justice further
reports that the sixty-eight sex trafficking prosecutions represent an 871 percent increase from fiscal
years 1996-2000 when only seven sex trafficking cases were filed. n76 In contrast, the twenty-three
labor trafficking cases filed between 2001-2005 show only a 109 percent increase from the eleven
labor trafficking cases filed between 1996-2000. n77
These numbers are disproportionate to estimates from non-governmental organizations and academic researchers asserting that approximately one-half to two-thirds of all trafficking in the U.S.
occurs in non-sex related industries. A 2004 report from Free the Slaves and the Human Rights
Center at University of California Berkeley indicates that 46.4 percent of trafficking cases are for

12

forced prostitution while 46.2 percent of trafficking cases are for domestic service, agricultural labor, sweatshops and food service. n78 Anecdotal evidence from anti-trafficking service providers
estimate that only one-third of their cases are related to the sex industry, while the clear majority of
their trafficking cases occur in non-sex industries. n79
Service providers contend that the U.S. government's focus on sex trafficking results in the rejection of labor trafficking cases for investigation and prosecution. The Forced Labor report indicates that NGOs observe federal law enforcement "downplaying of the severity of crimes involving
forced labor." n80 The government's lack of attention to labor trafficking cases results in the denial
of law enforcement protection to trafficked workers who may fear employer retaliation for escaping
the abusive work environment and reporting the incidents to the authorities. The neglect of labor
trafficking cases has the additional consequence of condoning employer abuses in non-sex industries, thereby hindering long-term prevention efforts to deter labor exploitation in any industry.
2. Impacts of Current Policies on Labor and Immigration
Other examples of current U.S. laws, highlight the perpetuation of migrant worker vulnerability
despite the TVPA's original intent to protect these workers from exploitation. For instance, the 2002
Supreme Court case, [*337] Hoffman Plastic Compounds, Inc. v. NLRB, n81 determined that an
undocumented worker, wrongfully terminated from his job for union organizing, was not entitled to
compensation for back pay due to his status as an illegal immigrant. As a result of this decision, all
undocumented workers asserting their right to associate under the National Labor Relations Act
(NLRA), n82 were deprived of certain labor remedies for employer retaliation. Employers can fire
undocumented workers who organize without providing reinstatement or compensation for lost
work. The case has had a pervasive effect on the immigrant worker community, as employers defending labor violations attempt to use the ruling to curtail worker organizing in non-NLRA matters
such as wage and hour and employment discrimination cases. n83
Domestic workers, who, according to reports from advocates and the Department of Justice,
constitute a large percentage of trafficking cases, n84 continue to lack sufficient employment and
labor protections. The NLRA does not include domestic workers under the definition of employee
under the NLRA and therefore, provides no protection for domestic workers from employer retaliation for striking or collective bargaining. n85 Individual domestic workers working in private
homes are ineligible to assert violations of sex, race or national origin discrimination under Title
VII. n86 Live-in domestic workers are not entitled to overtime pay under the Fair Labor Standards
Act (FLSA). n87 Finally, domestic workers employed by foreign diplomats cannot hold their employers accountable for workplace violations as diplomats enjoy immunity from civil, criminal, or
administrative liability within the United States. n88 While an exception to immunity exists for
"any professional or commercial activity exercised by the diplomatic agent in the receiving State
outside his official functions," n89 the 4th Circuit ruled in Tabion v. Mufti n90 that "commercial
activity" includes only activities for personal profit, explicitly stating that domestic workers are not
"commercial activity." Thus, pursuant to Tabion, domestic workers are denied claims against their
diplomat employers in the civil justice system.
[*338] Farmworkers, comprising a sizeable percentage of known trafficking cases in the U.S.
are similarly deprived of full labor protections. n91 Under federal law, farmworkers are not entitled
to overtime pay. In some cases, special agriculture exemptions for employers who, in a single calendar quarter during a year, do not use more than 500 man days of farm labor, exclude farmworkers
13

from receiving the federal minimum wage of $ 5.15 per hour. The NLRA does not protect farmworkers for organizing activities. Finally, guestworkers under the H-2A program are excluded from
the Agricultural and Seasonal Workers Protection Act, n92 the principal federal labor law for farmworkers. Consequently, H-2A workers are not entitled to disclosure of job terms during recruitment,
transportation safety requirements, or access to federal courts.
3. Impacts of Proposed Immigration Policies
Moreover, the introduction of new policy measures designed to "reform" immigration policy in the
United States, if passed, would exacerbate the exploitation of migrant workers. Introduced by James
Sensenbrenner, HR 4437 n93 passed in the House of Representatives on December 16, 2005. This
enforcement-only bill criminalizes all undocumented immigrants, expands the definition of "alien
smuggling" to hold criminally liable those who assist undocumented immigrants, and expands employment authorization verification requirements to "recruit and refer" entities such as day labor
centers and other workers centers. The Comprehensive Immigration Reform Act of 2006, S 2611,
n94 passed in the Senate on May 25, 2006. It is designed to drastically revamp the U.S. immigration
system and proposes some positive changes, such as a path to legal status for undocumented immigrants and a reduction in immigration backlogs. However, the bill also expands border and interior
enforcement, further criminalizing immigrants, by increasing the number of Border Patrol officers,
mandating expedited removal for non-citizens detained within 100 miles of the border and within
two weeks of entry, and broadening the definition of "aggravated felony" for purposes of deportation.
4. Conclusion
In order to advance the rights of trafficked persons and effectively prevent human trafficking, it is
necessary to dismantle the existing and proposed immigration and labor policies that facilitate trafficking. Reconceptualizing [*339] trafficking as an issue of labor migration takes a step toward
this goal by understanding trafficking as a gross violation of migrants' rights to live and work where
they choose, with freedom from abusive working conditions. A migrant labor rights paradigm, recognizes that labor rights violations remain at the core of trafficking. Globalization and neoliberal
polices have led to a lack of economic opportunity that allow individuals to support themselves and
their families in their sending countries. A demand for cheap and expendable labor increases the
vulnerability of migrant workers susceptible to trafficking. The migrant labor rights approach to
trafficking encourages safe migration for workers as well as worker empowerment through organizing in order for workers to claim their own labor rights.
C. Sexual and Reproductive Health
This section discusses the role of sexual and reproductive health ("SRH") within the U.S. antitrafficking framework. As a starting premise, it is significant to note that similar ideologies of the
Christian evangelical right fuel U.S. governmental policies regulating both SRH and trafficking.
The anti-prostitution pledge restricting grants to anti-trafficking organizations also limits funding to
domestic and international SRH organizations focusing on HIV/AIDS prevention, women's health
and family planning. Such policies hinder the work of these organizations, and more importantly,
stigmatize and marginalize their clients who are predominantly poor women of color from the developing world.

14

1. Impact of Policy on SRH Work in the Field


The 1995 Fourth World Conference on Women in Beijing, China developed a Platform for Action
published by the United Nations Educational, Scientific and Cultural Organization. n95 The Platform for Action stated an agenda for women's empowerment that called on nations to take action
promoting and respecting women's human rights. Among other things, the Platform for Action defined women's human rights as extending to sexual and reproductive health. It asked nations to "remove legal and regulatory and social barriers, where appropriate, to sexual and reproductive health
education within formal education regarding women's health issues..." n96 Despite these international recommendations, over the past decade, public health organizations note a rise in political
and religious conservatism. This conservatism is reflected in U.S. policy initiatives that resist an
individual's right to determine his or her own reproductive and sexual health options.
[*340] The impact of right wing ideologically driven policies on SRH work is most visible in
governmental funding strategies that support faith-based organizations promoting abstinence, while
excluding alternative prevention approaches to SRH. For example, in 2003, President Bush implemented an "emergency plan" for AIDS relief. The $ 15 billion appropriated, spends one-third of
prevention funds on abstinence until marriage programs. Further, the program opposes condom use
and discourages sex education. n97 The Department of Health and Human Services also increased
funding for "abstinence only" programs. n98 The propaganda of these programs criticizes the use of
contraception and condoms as having high failure rates and as ineffective due to the "reality" that
individuals do not use them. Such propaganda leads to a decrease in condom supplies and a decrease in the usage of condoms, consequently risking the sexual and reproductive health of both
men and women.
Additional policy measures restrict SRH. Pharmacists may now deny contraception for religious
reasons thereby circumventing access to contraception. In 2001, the U.S. government reintroduced
the "Global Gag Rule" which prohibits the distribution of USAID funding to family planning agencies abroad that provide or promote abortions or even give abortion information in counseling sessions.
Finally, policy constraints on SRH impact the LGBT community. For example, the Center for
Disease Control and National Institute of Health drastically reduced funding for research on health
issues specific to the LGBT population. These policies are similar to measures that prevent access
to contraception, privilege traditional heterosexual married men and women, and marginalize alternative lifestyles and sexual orientations.
2. Sex Work and HIV/AIDS Prevention
The Trafficking Victims Protection Reauthorization Acts of 2003 and 2005, which incorporated the
anti-prostitution pledge and gag rule, highlight the connection between policy restrictions on SRH
and trafficking. The Trafficking Act and the U.S. government's "s Global AIDS Act of 2003 both
forbid funding to any group that does not explicitly oppose prostitution and sex trafficking. This
exclusion includes organizations that collaborate with sex workers to perform outreach work on
HIV prevention and sexual health.
The moralistic ideology driving the government's SRH policies alienates sex workers from the
fight against HIV/AIDS and prevents sex workers from protecting their own sexual health. The antiprostitution pledge requiring health [*341] care and social service providers to denounce prostitu15

tion has the effect of depriving sex workers of safer sex education and contraception. It also prevents the mobilization of sex workers to control the spread of HIV/AIDS by demanding condom use
by their clients.
Advocates agree that any successful effort to combat HIV/AIDS should involve sex workers.
Yet, governmental policies vilify sex workers as the source of HIV/AIDS, rather than viewing them
as people impacted by the disease, entitled to treatment, and uniquely positioned to impact
HIV/AIDS prevention and education. n99 The anti-prostitution pledge forces SRH organizations to
"take sides." By accepting funding from the government, these organizations must condemn their
clients who may choose to engage in sex work, thereby denying sex workers of their fundamental
human right to healthcare.
3. Conclusion
According to advocates, the ideologically driven policies that currently regulate SRH deny medical
services and preventive health care to populations marginalized by poverty, race, gender, sexual
orientation, and social stigma. n100 Instead, a rights-based approach to SRH promotes universal
access to health care by individuals susceptible to trafficking such as migrant women, sex workers,
and others who experience discrimination due to social, economic and political factors.
Human rights advocates also support harm reduction methodologies, recognizing that some individuals may continue to engage in risky behavior. The harm reduction approach seeks to mitigate
health risks by equipping individuals with preventative education and the tools to protect themselves while remaining non-judgmental of their independent lifestyle choices. In contrast, the ideologically driven "abstinence only" approach to SRH takes a moral stance on access to healthcare,
impeding health services to individuals who lead alternative lifestyles. Such an approach limits the
autonomy of individuals to make their own reproductive and sexual health choices.
III. A Revitalized Anti-Trafficking Movement
Based on ongoing discussions between anti-trafficking and human rights advocates from diverse
sectors, there are at least three overarching objectives of a revitalized anti-trafficking movement:
identification of guiding principles; [*342] expansion of a broad anti-trafficking coalition; and a
fundamental shift in the current anti-trafficking rhetoric. These objectives may serve to unify the
distinct subject areas of prostitution, labor migration and reproductive and sexual health. n101
A. Guiding Principles
Guiding principles provide the foundation for a consistent platform to build a cross-sectoral movement advancing trafficked persons' rights, migrant labor rights, and reproductive and sexual health
rights. At a minimum, core principles should include extending comprehensive labor protections to
all migrant and non-migrant workers in all labor sectors including commercial sex, domestic service, agriculture, construction, restaurants, hotels, factories, and any other type of work. Other core
principles may include ending law enforcement rescue raids, and replacing this tactic with community-based responses to assisting trafficked persons and preventing trafficking; developing immigration laws that protect migrant workers and account for the reality of labor migration; recognizing
the autonomy and self-determination of all individuals; protecting and promoting the freedom to
organize for migrant, labor, reproductive and sexual health rights; and actively addressing race, ethnicity, class, gender, sex, sexual orientation, and other factors affecting trafficking.
16

B. Expanded Coalitions
A new coalition committed to the above principles may include groups that have not previously
worked with anti-trafficking organizations or with each other. Such groups include public health
advocacy organizations, grassroots organizations that encourage migrant worker organizing, formal
and informal unions of domestic workers, sex workers and agricultural workers, and anti-border enforcement groups that advocate for safe migration across international borders for all individuals.
Building alliances between these seemingly disparate groups requires identifying the intersecting
issues that connect them with each other and with anti-trafficking advocacy. For example, antitrafficking groups share with domestic workers, sex workers and agricultural workers, the goal of
fair labor conditions. These groups, in turn, connect to public health advocacy by supporting the
right to safe and healthy work environments and the right to access healthcare that respects individual lifestyle choices.
Alliances between these groups should also consider potential points of fragmentation. For example, the prevailing trafficking framework has created implicit categories of trafficking victims,
giving preference and protection to victims of sexual slavery, while denying protection to trafficked
persons [*343] viewed as migrant laborers. Arbitrary determinations by officials that consider
some workers trafficked based on the egregiousness of their working conditions and others not, create "levels" of exploitation that could divide the workers' rights community. For example, the illicit
nature of prostitution may alienate sex workers from a broader migrant worker rights movement.
The migrant labor rights approach emphasizes worker organizing to enforce fair working conditions
and to advocate for increased labor protections. Because sex work is not legally recognized as a
form of labor,, sex workers' rights groups, such as the Sonagachi project in Calcutta, must organize
to not only enforce fair working conditions, but to also advocate for the decriminalization of prostitution. n102
C. A Change in Rhetoric
A cross-sectoral coalition broadening the conceptual framework of trafficking may facilitate the
rejection of the current rhetoric of trafficking. The expansive legal definitions of "trafficking" in the
Palermo Protocol and the TVPA resulted from advocacy of human rights groups to comprehensively define "trafficking," to include men, women, and children compelled to work in any labor
industry. However, the U.S. government's narrow focus on sex trafficking and cooptation of trafficking as a tool for the criminalization of prostitution distorts the meaning of "trafficking." Media
images mirror the conflation of trafficking with prostitution with sensationalized stories of sex
slaves. n103 Symbolically, "trafficking" has regressed to stereotyped images of poor, uneducated,
and helpless young women and girls, forced into prostitution, reminiscent of historical conceptions
of "white sexual slavery" at the turn of the twentieth century. These stereotypes are used to rationalize the U.S. government's criminal enforcement approach to trafficking through "raid and rescue"
practices, which operate on the presumption that brothels imprison passive sex slaves who need to
be rescued by law enforcement. Such perceptions of "trafficking" divert attention away from issues
of globalization and labor migration that drive trafficking and distort the profile of "trafficking victim" to exclude many other migrant workers.
"Trafficking," connoting only "sex," has polluted the efforts of many advocates in accessing
protection for their clients trafficked into non-sex related industries. The disposal of the term "trafficking" altogether could revitalize anti-trafficking advocacy to advance the rights of trafficked
17

workers [*344] in all industries by refocusing anti-trafficking work on reforming the underlying
migration and labor policies that perpetuate the exploitation of all migrant workers. Anti-trafficking
advocates have begun this process through public education efforts and interactions with the media.
By using alternate language to describe trafficking, such as forced or coerced migrant labor, the
reconceptualization of trafficking as a migrant labor rights issue can evolve.
Conclusion
In order to protect the rights of trafficked persons and to work toward the elimination of trafficking,
human rights advocates across multiple sectors should advance a movement based on shared goals.
Current U.S. policies and procedures addressing trafficking divert attention away from underlying
root causes and deprive certain trafficked persons of full access to immigration and labor protections. Moreover, related U.S. policies on labor migration, reproductive, and sexual health rights operate to restrict the rights of not only trafficked persons, but more generally migrant workers and
women. New understandings of trafficking as it impacts and is affected by a broad spectrum of issues connect advocates in different but related fields. This reconceptualization can serve to build an
inter-sectoral movement for the labor and reproductive and sexual health rights of all individuals,
regardless of occupation, citizenship or immigration status.
Developing new approaches to human trafficking to better serve the needs and rights of survivors of trafficking and migrant workers in all industries will entail collaborations among organizations and movements that have been largely divided against each other until recently. The very goal
of centering the needs and rights of migrant workers runs counter to the current U.S. federal agenda
of criminalizing prostitution. While compliance with this agenda has been enforced through the
anti-prostitution pledge and many other U.S. government measures that have created suspicions and
divisions among groups, perspectives from the field(s) indicate that many advocates have transcended the government's divisive tactics, and are beginning to forge effective alliances in the
broader movement against human trafficking.
Certainly more work is needed to counter these divisions and facilitate the critical and logical
links between immigrant rights, labor rights, sex worker rights, sexual and reproductive health, and
anti-trafficking advocacy, organizing and scholarship. Yet there are already several emerging models of U.S. and international organizations working against, within and around the constraints of the
U.S. federal approach towards more effective responses. These groups provide social services, support organizing, create analyses and inform policies that can better meet the needs of survivors of
trafficking, all exploited migrant workers and the victims of other harmful U.S.-sponsored "antitrafficking" activities.
Legal Topics:
For related research and practice materials, see the following legal topics:
Constitutional LawBill of RightsFundamental FreedomsJudicial & Legislative RestraintsOverbreadth & VaguenessCriminal Law & ProcedureCriminal OffensesSex CrimesProstitutionElementsLabor & Employment LawEmployee PrivacyDisclosure of Employee InformationPublic Employees

18

FOOTNOTES:
n1. These gatherings include "Shaping the Future: New Voices & Strategies on Human
Trafficking," a conference sponsored by the Freedom Network, in Chicago, IL, March 2006;
"Sex Work Matters: Beyond Divides," a conference sponsored by CUNY Graduate Center
and the New School for Social Research in New York, NY, March 2006; and "Summit on
Human Trafficking,: Critiques and New Strategies," a conference sponsored by the Global
Fund for Women and the Open Society Institute in New York, NY, May 2006.
n2. Summit on Human Trafficking: Critiques and New Strategies, Open Society Institute,
New York, New York, May 2006. This two-day meeting was funded by a generous grant
from Global Fund for Women. The Summit was organized by Lin Chew, who was Activistin-Residence for the Global Fund for Women, Ann Jordan, Director of the Initiative Against
Trafficking In Persons at Global Rights, Kathleen Kim, who was Immigrants' Rights Teaching Fellow at Stanford Law School, and Alice Miller, Assistant Professor of Clinical Public
Health at Columbia University. The Summit brought together human rights advocates who
work in the interrelated fields of anti-trafficking, labor migration, sex workers' rights, and
sexual and reproductive health. Summit participants shared perspectives on current struggles
within their work posed by current U.S. policies and practices with an aim to launch an intersectoral movement to advance the rights of trafficked persons.
n3. See e.g., Edi C. M. Kinney, Appropriations for the Abolitionists: Undermining Effects
of the U.S. Mandatory Anti-Prostitution Pledge in the Fight Against Human Trafficking and
HIV/AIDS, 21 Berkeley J. Gender L. & Just. 158 (2006).
n4. See e.g., Urban Justice Ctr., Statement on Trafficking in Persons for the 51st Session
of the U.N. Commission for the Status of Women on the "Elimination of All Forms of Discrimination and Violence Against the Girl Child" (2007), available at
http://www.urbanjustice.org/pdf/publications/swp csw 51 statement.pdf; see also Urban Justice Ctr., Working Group on Sex Work and Human Rights, Toolkit (on file with author). The
Sex Workers Project at the Urban Justice Ctr. is an invaluable resource and has accomplished
tremendous advocacy on behalf of trafficked persons and sex workers.
n5. Bureau of Pub. Aff., Dep't of State, The Link Between Prostitution and Sex Trafficking, (Nov. 24, 2004), http://www.state.gov/r/pa/ei/rls/38790.htm.
n6. Letter from Ann Jordan, Director, Initiative Against Trafficking In Persons, Global
Rights, et al., to John Miller, Director, Office to Monitor and Combat Trafficking In Persons,
U.S. Dep't of State (Apr. 21, 2005) (on file with author).
n7. U.S. Gen. Acct. Office, GAO-06-825, Better Data, Strategy, and Reporting Needed to
Enhance U.S. Antitrafficking Efforts Abroad 2 (2006), available at www.gao.gov/cgibin/getrpt?GAO-06-825.
19

n8. Press Release, White House Off. of the Press Secretary, Trafficking in Persons National Security Presidential Directive (Feb. 25, 2003) (on file with author).
n9. U.S. Dep't of Just., Report on Activities to Combat Human Trafficking: Fiscal Years
2001-2005, 6 (2006), [hereinafter U.S. Dep't of Justice] available at
http://www.usdoj.gov/crt/crim/trafficking report 2006.pdf.
n10. Id. at 6.
n11. Id. at 6.
n12. 22 U.S.C. 7110(g)(1) (2006) (barring use of funds to "promote, support, or advocate the legalization or practice of prostitution").
n13. Id. (requiring organizations receiving funding to state "in either a grant application, a
grant agreement, or both, that it does not promote, support or advocate the legalization or
practice of prostitution").
n14. 22 U.S.C. 7631(e)-(f) (2003) (barring use of funds to "promote or advocate the legalization or practice of prostitution or sex trafficking" and requiring organizations receiving
funding to "have a policy explicitly opposing prostitution and sex trafficking").
n15. Letter from Daniel Levin, Acting Assistant Attorney General, U.S. Dep't of Justice,
to Alex M. Azar II, General Counsel, U.S. Dep't of Health and Human Svcs. (Sept. 20, 2004),
available at http://www.globalrights.org/site/DocServer/Update letter on funding restrictions.2005.doc?docID=4224.
n16. 22 U.S.C. 7110(g)(1) (2006).
n17. Letter from Ann Jordan, Director, Initiative Against Trafficking in Persons, Global
Rights to Friends (Jan. 7, 2004) (on file with author); Letter from Rep. Henry A. Waxman, to
Alberto Gonzales, Attorney General, U.S. Dep't. of Just. (Apr. 13, 2005) (on file with author).
n18. See West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (invalidating a
requirement to pledge allegiance as a condition of attending public school).
n19. Rust v. Sullivan, 500 U.S. 173, 196 (1991).

20

n20. Letter from Ctr. for Gender and Health Equality, et al., to George W. Bush, President, United States of America, (May 18, 2005) (on file with author), available at
http://www.aidsinfonyc.org/tag/activism/globalAppropriations.html (citing an interview by
Alice Miller, Columbia Univ. Law School, with Elaine Pearson, Anti-Slavery International,
Bangkok, Thailand in July 2004 that discussed NGOs in Cambodia discontinuing "plans to
provide English language training classes for people working in the commercial sex sector for
fear such programs would be interpreted as "promoting prostitution").
n21. Id.
n22. Michael M. Phillips & Matt Moffett, Brazil Refuses U.S. Aids Funds, Rejects Conditions, Wall St. J., May 2, 2005, at A3.
n23. Alliance for Open Soc'y Int'l, Inc. v. United States Agency for Int'l Dev., 430 F. Supp.
2d 222 (S.D.N.Y. 2006).
n24. DKT Int'l, Inc. v. United States Agency for Int'l Dev., 435 F. Supp. 2d 5 (D.D.C.
2006).
n25. See Complaint, DKT Int'l, Inc., 435 F.Supp. 2d 5 (Civ. No. 05-1604 (EGS)) 2005
WL 3568821, available at http://www.brennancenter.org/programs/downloads/dkt district
court complaint.pdf; see also Complaint, Alliance for Open Society International, Inc., and
Open Society Institute, 435 F. Supp 2d 222 (No. 05 Civ. 8209) , available at
http://www.brennancenter.org/dynamic/subpages/download file 8355.pdf.
n26. See supra note 25.
n27. Id.
n28. 22 U.S.C. 7110(g)(1) (2006).
n29. Letter from Daniel Levin, supra note 15.
n30. Press Release, EngenderHealth, U.S. Court Rules Antiprostitution Loyalty Oath Unconstitutional, (June 8, 2006), available at
http://www.engenderhealth.org/news/newsreleases/060607a.html.
n31. U.S. Dep't of Justice, supra note 9, at 25.
n32. Kathryn McMahon & Coalition to Abolish Slavery and Trafficking, Speaking Out:
Three Narratives of Women Trafficked to the United States (2002).
21

n33. U.S. Dep't of State, Trafficking in Persons Report 53 (2006), available at


http://www.state.gov/g/tip/rls/tiprpt/2006/.
n34. U.S. Gen. Accounting Office, supra note 7, at 1.
n35. Grace Chang, Redefining Agency: Transnational Feminist, Immigrant, and Sex
Workers (July 1, 2007) (unpublished manuscript, on file with author).
n36. Sex Workers Across Borders, Mission Statement,
http://www.bayswan.org/traffik/swabmission.doc (last visited July 1, 2007).
n37. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children, Supplementing the United Nations Convention against Transnational Organized Crime, G.A. Res. 55/25, Annex II, U.N. Doc. A/RES/55/25 (Nov. 15, 2000) [hereinafter
Palermo Protocol].
n38. Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386
(2000) (codified as amended in scattered sections of 22 U.S.C.).
n39. Kathleen Kim, Psychological Coercion in the Context of Modern-Day Forced Labor:
Revisiting U.S. v. Kozminski and Understanding Human Trafficking, 38 U. Tol. L. Rev. 941
(2007).
n40. Kathleen Kim & Kusia Hreshchyshyn, Human Trafficking Private Right of Action:
Civil Rights for Trafficked Persons in the United States, 16 Hastings Women's L.J. 1, 4, 12
(2004) (exploring the use of civil litigation as an alternative to the 3P approach).
n41. Grace Chang, Trafficking By Any Other Name (forthcoming 2008).
n42. Id.
n43. These conditions include requiring indebted nations to reduce government social
service spending, slash wages, liberalize imports, open markets to foreign investment, expand
exports, devalue local currency and privatize state enterprises. See Grace Chang, Disposable
Domestics: Immigrant Women Workers in the Global Economy, (2000).
n44. Grace Chang, From the Third World to the Third World Within, in Labor Versus
Empire 217-34, (Gilbert G. Gonzalez et al. eds., 2004).

22

n45. Chang, supra note 41.


n46. Interpretative note (63) states: "the travaux preparatoires should indicate that the reference to the abuse of a position of vulnerability is understood to refer to any situation in
which the person involved has no real and acceptable alternative but to submit to the abuse
involved." Palermo Protocol, supra note 37.
n47. Palermo Protocol, supra note 37.
n48. Bayswan.org, Definitions of Trafficking,
http://www.bayswan.org/traffick/deftraffickUN.html (last visited March 27, 2007).
n49. Bayswan.org, Definition of Sexual Exploitation,
http://www.bayswan.org/traffick/deftraffickUN.html (last visited March 27, 2007).
n50. U.S. Dep't of State, Trafficking in Persons Report, supra note 33.
n51. Sea-ling Cheng, Anti-Trafficking Discourses and Policies: A Gendered and Human
Rights Perspective, paper presented at Women's Worlds 2005 conference, Ewha Women's
University, Seoul, Korea, June 21, 2005; see also Lisa Katayama, Sex Trafficking: Zero Tolerance, Mother Jones Blog, May 4, 2005,
http://www.motherjones.com/news/dailymojo/2005/05/sex trafficking.html.
n52. H.R. 2012, 109th Cong. (2005).
n53. H.R. 972, 109th Cong. (2005) (enacted).
n54. Trafficking Victims Protection Reauthorization Act, Pub. L. No. 109-164,
204(a)(1)(B) (codified at 42 U.S.C.A. 14044c (2007)).
n55. Id. at 204(a)(1)(C) (codified at 42 U.S.C.A. 14044c (2007)).
n56. See Urban Justice Ctr., Revolving Door: An Analysis of Street-Based Prostitution in
New York City 21 (2003), available at
http://www.sexworkersproject.org/reports/RevolvingDoor.html.
n57. Working Group on Prostitution, Canadian Dep't of Justice, Report and Recommendations in Respect of Legislation, Policy and Practices Concerning Prostitution-Related Activities (1998) pt. III(B)(ii)(c), available at
http://www.canada.justice.gc.ca/en/news/nr/1998/toc.html.

23

n58. Urban Justice Ctr., surpra note 4.


n59. See Global Rights, Int'l Org. for Adolescents, et al., Comments on Bill To End Demand for Sex Trafficking Act of 2005 (2005), available at
http://www.globalrights.org/site/DocServer/Comments on End Demand bill
4.22.pdf?docID=2203.
n60. Letter from Ann Jordan, Global Rights et al. to Sen. John Cornyn (Apr. 22, 2005)
(on file with author).
n61. Emilia Casella & Irene Martinetti, Urban Justice Ctr., Draft Critique of Focus on
Demand in the Context of Trafficking in Persons, (2006).
n62. Sex Worker's Project, Urban Justice Ctr., International Covenant on Civil and Political Rights Shadow Report: Domestic Criminal Justice and Access to Courts (2006), available
at http://www.urbanjustice.org/pdf/publications/swp submission iccpr shadow may06.pdf.
n63. Urban Justice Ctr., The Truth about Demand (2007).
n64. Press Release, U.S. Dep't of Justice, 29 Charged in Connection With Alien Harboring Conspiracy (July 1, 2005) (on file with author).
n65. Chang, supra note 35.
n66. Id.
n67. Carol Leigh, Op-Ed., Behind the Moral Panic, An Opportunity to Work, S.F. Chron.,
July 22, 2005, at B9.
n68. Julie Su, El Monte Thai Garment Workers: Slave Sweatshops, in No Sweat: Fashion,
Free Trade, and the Rights of Garment Workers 143, 143 (Andrew Ross ed., 1997).
n69. LeRoy Potts, Global Trafficking in Human Beings: Assessing the Success o the
United Nations Protocol to Prevent Trafficking in Persons, 35 Geo. Wash. Int'l. L. Rev. 227,
233 (2003).
n70. 22 U.S.C. 7101(b)(3) (2000).
n71. Kim, supra note 39 (exploring the legal dimensions of psychological coercion in the
context of human trafficking).
24

n72. H.R. Rep. No. 106-939, at 101 (2000) (Conf. Rep.).


n73. 472 F. 3d 638 (9th Cir. 2006).
n74. U.S. Dep't of Justice, supra note 9, at 75.
n75. Id.
n76. Id. at 25.
n77. Id. at 27.
n78. Free the Slaves & Human Rights Ctr., Univ. of Cal. Berkeley, Hidden Slaves: Forced
Labor in the United States, 19 (2004), available at
http://www.hrcberkeley.org/download/hiddenslaves report.pdf.
n79. See Debbie Nathan, Oversexed, The Nation, Aug. 2005; see also Bernice Yeung, Enslaved in Palo Alto, S.F. Weekly, Feb. 18, 2004.
n80. Free the Slaves & Human Rights Ctr., supra note 78, at 33.
n81. Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002).
n82. National Labor Relations Act, 29 U.S.C.152-169 (2001).
n83. Kim, supra note 39.
n84. McMahon, supra note 32.
n85. 42 U.S.C. 12111 (2001).
n86. 42 U.S.C. 12111 (2001). Title VII applies to employers with fifteen or more employees. Because domestic workers are frequently the sole employee in the workplace, they
are excluded from Title VII protection.
n87. 29 U.S.C.A. 213(a)(15), 213(b)(21).

25

n88. Human Rights Watch, Hidden in the Home: Abuse of Domestic Workers with Special Visas in the United States 34-35 (2001).
n89. Vienna Convention on Diplomatic Relations art. 31(c), Apr. 18, 1961, 23 U.S.T.
3227.
n90. 73 F.3d 535 (4th Cir. 1996).
n91. United States v. Bradley, 390 F.3d 145 (1st Cir. 2004); United States v. Flores, No.
98-4178, 1999 WL 982041 (4th Cir. Oct. 29, 1999); United States v. Garcia, No. 02-110,
2003 WL 22938040 (W.D.N.Y. Dec. 2, 2003); United States v. Michael Lee, No. 00-14065
(S.D. Fla. 2000).
n92. 29 U.S.C. 1851 (2002).
n93. H.R. 4437, 109th Cong. (2nd Sess. 2006).
n94. S. 2611, 109th Cong. (2nd Sess. 2006).
n95. Fourth World Conference on Women, Sept. 4-15, 1995, Beijing Declaration and
Platform for Action, U.N. Doc A/CONF.177/20 (September 15, 1995).
n96. Id. at P 83(k).
n97. Eldis, Key Debates in Sexual and Reproductive Health and Rights, http://www.eldis.org/health/srhr/debates.htm (last visited June 3, 2007).
n98. Sharon Jayson, Abstinence Message Goes Beyond Teens, USA Today, (Oct. 30,
2006).
n99. Urban Justice Ctr., Working Group on Sex Work and Human Rights, Toolkit (2006)
(on file with author).
n100. Eldis Health Key Issues, Universal Access to Sexual and Reproductive Health Services (2006), available at http://www.eldis.org/health/Universal/universal access.pdf.
n101. Discussion notes from the Summit on Human Trafficking: Critiques and New
Strategies, supra note 2 (on file with author).

26

n102. Smarajit Jana et al., The Sonagachi Project: A Sustainable Community Intervention
Program, 16 AIDS Educ. & Prevention 5, 405-414 (2004).
n103. See, e.g., Peter Landesman, The Girls Next Door, N.Y. Times, January 25, 2004, at
sec. 6; Meredith May, Sex Trafficking: San Francisco Is A Major Center For International
Crime Networks That Smuggle And Enslave, S.F. Chron. Oct. 6, 2006, at A1.

27

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COLUMBIA LAW REVIEW


VOL. 105

APRIL 2005

NO. 3

ARTICLES
POLYGAMY, PROSTITUTION, AND THE FEDERALIZATION
OF IMMIGRATION LAW
Keny Abrams*
When Congress banned the immigration of Chinese prostitutes with the
Page Law of 1875, it was the first restrictivefederal immigration statute.
Yet most scholarship treats the passage of the Page Law as a relatively unimportant event, viewing the later Chinese Exclusion Act as the crucial
landmark in the federalization of immigration law.
This Article argues that the Page Law was not a minor statute targeting a narrow class of criminals, but rather an attempt to prevent Chinese
women in generalfrom immigrating to the United States. Most Chinese women migrating to the United States in the early 1870s were prostitutes or
second wives in polygamous marriages. Congressfeared the unorthodox Chinese practices of polygamy and prostitution,believing that these customs were
reflective of an underlying slave-like mentality that rendered the Chinese unfit for democratic self-governance. By identifying and excluding Chinese women as prostitutes, the law prevented the birth of Chinese American children
and stunted the growth of Chinese American communities.
The Page Law was an important statute not only because of its goals,
but also because of its method. America's internationaltrade objectives and
treaty obligations made outright restrictions on Chinese immigration untenable in 1875. By targetingmarginalimmigrants-women, and prostitutes at
that-Congresswas able to restrict Chinese immigration while maintaining
a veneer of inclusiveness. Thus, in passing the first restrictivefederal immigration law, Congress managed to exclude a group of people by defining
them as outside the boundaries of legal marriage.
* Acting Assistant Professor, New York University School of Law, Lawyering Program.
For their many helpful suggestions and insights, I thank Amy Adler, Barbara Allen
Babcock, the late Kim Barry, Peggy Cooper Davis, Ariela Dubler, Barry Friedman, Brandon
Garrett, Sally Gordon, Janet Halley, Kari Hong, Larry Kramer, Deborah Malamud, Hiroshi
Motomura, William Nelson, Gerald Neuman, and Todd Stevens. Reed Davis and Nancy
Rimmer provided excellent research assistance. Earlier versions of this article benefited
greatly from presentations at the New York University Legal History Colloquium and the
New York University Lawyering Program Faculty Workshop, and I thank everyone who
participated. Finally, I want to thank Zachary Tripp of the Columbia Law Review for his
thoughtful and careful editorial work. All errors are my own.

[Vol. 105:641

COLUMBIA LAW REVIEW


TABLE OF CONTENTS

642

INTRODUCTION .....................................................

I.

CHINESE WOMEN AND THE GROWING ANIMOSITY IN THE

WEST .......................................................
A. The Economic Origins of Chinese Immigration .......
B. Marriage, Morals, and the Threat of Chinese Women.
1. Chinese Marriage Customs: Polygamy and
Prostitution ......................................
2. The Link to Slavery ..............................
3. The Threat of Reproduction .....................
II.

IMMIGRATION LAW BEFORE THE PAGE LAW .................

A. The Struggle for Control: The Federal Commerce


Power Versus the State Police Power .................
B. Laws Affecting Chinese Immigration Before the Page
L aw .................................................
1. Congress's Limited Involvement in Immigration ..
2. California's Anti-Chinese Statutes .................
III.

CALIFORNIA'S STRATEGY TESTED:

THE FEDERAL EXCLUSION OF CHINESE WOMEN:

664
668
668
671
677
678
680
681
684
687

THE PAGE

LAw .....................................................
A. Legislative History ...................................
B. The Statute ..........................................
C. Enforcem ent .........................................
V.

653
657
661
664

THE "CASE or THE TWENTY-

Two CHINESE W OMEN" .....................................


A. Detention Under the 1874 Law ......................
B. The Women's Testimony .............................
C. The Expert Testimony ...............................
D. The Court's Ruling, and Ah Fook's Appeal ...........
E. The Federal Court Appeal: Ah Fong ..................
IV.

648
649
653

690
692
695
698

THE PAGE LAw AND THE DEVELOPMENT OF AN ANTI-CHINESE

IMMIGRATION POLICY .......................................

A. The Erasure of Equal Protection for Immigration: Chy


L ung.......................
.........................
B. Paving the Way for the Chinese Exclusion Act ........
C. Marriage and Post-Exclusion Act Regulation ..........
CONCLUSION .......................................................

702
703
706
710
715

INTRODUCTION

The regulation of marriage and morality played a pivotal role in the


federalization of immigration law. Following the Civil War, as large numbers of Chinese immigrants began to arrive on the West Coast, animosity
toward the Chinese resulted in a dramatic transformation in immigration
law from a relatively laissez faire, state-based system, to an extensive and
restrictive federal regime. Animus toward the unorthodox Chinese practices of polygamy and prostitution was an important factor animating the
federalization of immigration law. Congress not only feared the Chinese

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POLYGAMY, PROSTITUTION, AND FEDERALIZATION

643

practices of polygamy and prostitution, but also believed that these customs rendered the Chinese unfit for self-governance. Congress viewed
these institutions as reflective of an underlying "slave-like" mentality, fundamentally at odds with citizenship in a participatory democracy.
Both prostitution and polygamy were deeply entrenched practices in
Chinese immigrant culture-and were deeply antithetical to American
conceptions of marriage as a consensual "love match." Indeed, most female Chinese immigrants during this period were either prostitutes or
second wives in polygamous marriages. The Fourteenth Amendment's
command that "[a] 11 persons born or naturalized in the United States...
are citizens of the United States"1 created an additional concern: The
children of these "slave-like" Chinese immigrants would become American citizens, and these practices would thus become part of the fabric of
American democracy. To prevent this from happening, it was necessary
to prevent Chinese women-especially prostitutes and second wivesfrom entering the country.
In 1875, Congress passed the first federal restrictive immigration statute: the Page Law. 2 This law banned the immigration of women who
had entered into contracts for "lewd and immoral purposes," made it a
felony to import women into the United States for purposes of prostitution, and included enforcement mechanisms specifically targeting Chinese women. The text, legislative history, historical context, and enforcement of the Page Law indicate that one of its animating purposes was to
prevent the Chinese practices of polygamy and prostitution from gaining
a foothold in the United States. Thus, concern about preserving traditional American conceptions of marriage and family lies at the root of
our federal immigration system.
Both the federal and state governments targeted female Chinese immigrants in an effort to protect traditional marriage and sexual norms.
In the face of expanding federal power, California in particular struggled
to maintain control over its Chinese population. To avoid the charge
that it was impermissibly regulating "immigration," it crafted its exclusionary laws as regulations of public morals. While California could not
exclude Chinese women for being "Chinese," it could exclude them by
classifying them as outside the acceptable category of "wives." This
proved to be a particularly effective method of regulation because such
laws did not appear to directly target immigration.
As the power to restrict immigration shifted from the states to the
federal government, however, courts struggled to determine whether
morals legislation targeting foreign prostitutes constituted regulation of
vice properly exercised under the states' police power, or a foreign policy
question that should be determined by the federal government. Federal
courts ultimately struck down state legislation as an impermissible intru1. U.S. Const. amend. XIV, 1.
2. Act of Mar. 3, 1875 (Page Law), ch. 141, 18 Stat. 477 (repealed 1974).

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[Vol. 105:641

sion into the federal government's plenary power over international


3
relations.
Virtually simultaneously, Congress passed the Page Law, inscribing
the same anti-Chinese principles into a federal statute. Like the state statutes, the Page Law was introduced only after other attempts at directly
regulating Chinese immigration had been tried and had failed. While
the impediment to direct regulation of immigration at the state level was
the federal courts' assertion of a federal immigration power, at the federal level the impediment was the Burlingame Treaty with China, which
prohibited restrictions on Chinese immigration. 4 Even though California's statutes targeting "lewd or debauched" women had been exposed by
the courts as impermissible encroachments on the federal immigration
power, the Page Law sailed through Congress without any expressed concerns that it might contravene the Burlingame Treaty. Targeting women
whose sexual behavior and familial structure fell outside an acceptable
standard simply did not appear to be a restriction of immigration.
By demonstrating the important role played by social ideals of marriage and morality in the shift from state to federal immigration, this Article contributes to a growing body of scholarship analyzing the importance of the family in American legal history. Historians have shown, for
example, that throughout the nineteenth and twentieth centuries, marriage functioned not merely as a private contract between two people, but
as a public status that served as the building block of society and framed
the social and familial options available to individuals. 5 Several scholars
3. Chy Lung v. Freeman, 92 U.S. 275, 280 (1876) ("The passage of laws which concern
the admission of... subjects of foreign nations to our shores belongs to Congress, and not
to the States."); In re Ah Fong, 1 F. Cas. 213, 216 (C.C.D. Cal. 1874) (No. 102) ("Whatever
outside of the legitimate exercise of [state police power] affects the intercourse of
foreigners with our people . . . is exclusively within the jurisdiction of the general
government, and is not subject to state control or interference.").
4. Treaty of July 28, 1868, U.S.-China, art. VI, 16 Stat. 739, 740 [hereinafter
Burlingame Treaty].
5. Nancy F. Cott, Public Vows: A History of Marriage and the Nation 8, 136-38
(2000); see also generally Candice Lewis Bredbenner, A Nationality of Her Own: Women,
Marriage, and the Law of Citizenship (1998) (tracing role of marriage in citizenship policy
beginning in 1907); Pamela Haag, Consent: Sexual Rights and the Transformation of
American Liberalism (1999) (showing shift in attitudes toward women's ability to consent
to sexual conduct through nineteenth and early twentieth centuries); Ariela R. Dubler, In
the Shadow of Marriage: Single Women and the Legal Construction of the Family and the
State, 112 Yale L.J. 1641 (2003) [hereinafter Dubler, In the Shadow] (analyzing the
shifting construction of widows' legal rights to show how marriage laws and norms affected
even unmarried women); Ariela R. Dubler, Wifely Behavior: A Legal History of Acting
Married, 100 Colum. L. Rev. 957 (2000) (analyzing effects of marriage norms and laws on
cohabitating couples);Jill Elaine Hasday, Contest and Consent: A Legal History of Marital
Rape, 88 Cal. L. Rev. 1373 (2000) (tracing history of resistance to marital rape exemptions
in the nineteenth century); Jill Elaine Hasday, Parenthood Divided: A Legal History of the
Bifurcated Law of Parental Relations, 90 Geo. L.J. 299, 329, 333 (2002) (showing how,
beginning in the 1870s, organizations such as the New York Society for the Prevention of
Cruelty to Children began intervening in families with unemployed fathers); Reva B.

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POLYGAMY, PROSTITUTION, AND FEDERALIZATION

645

have identified Reconstruction as a time during which marriage norms


were particularly important and contested, especially in providing access
to citizenship for former slaves. 6 But no one has yet focused specifically
on the important role played by marriage in the advent of federal immigration law.
The Page Law itself is surprisingly understudied. Legal scholars and
historians interested in immigration often ignore the Page Law altogether. Instead, they cite the Chinese Exclusion Act of 1882, 7 which restricted the immigration of Chinese laborers, as the first racially based
federal immigration law.8 While many scholars acknowledge the Page
Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the
Family, 115 Harv. L. Rev. 947 (2002) (highlighting adoption of the Nineteenth
Amendment as a break with traditional conceptions of family rooted in coverture); Leti
Volpp, American Mestizo: Filipinos and Antimiscegenation Laws in California, 33 U.C.
Davis L. Rev. 795 (2000) (showing effects of antimiscegenation laws on Filipino/a
immigrants).
6. See Peggy Cooper Davis, Neglected Stories: The Constitution and Family Values
108-17 (1997) (showing that family rights were an important aspect of the Reconstruction
amendments); Amy Dru Stanley, From Bondage to Contract: Wage Labor, Marriage, and
the Market in the Age of Slave Emancipation 175-217 (1998) (examining the public
debate over the marriage contract in the wake of slave emancipation); Katherine M.
Franke, Becoming a Citizen: Reconstruction Era Regulation of African American
Marriages, 11 Yale J.L. & Human. 251 (1999) (discussing the role marriage played in
imposing the dominant cultural norms on African Americans during Reconstruction); Jill
Elaine Hasday, Federalism and the Family Reconstructed, 45 UCLA L. Rev. 1297 (1998)
[hereinafter Hasday, Federalism and the Family] (analyzing the importance of family law
in slavery and Reconstruction).
7. Act of May 6, 1882 (Chinese Exclusion Act), ch. 126, 22 Stat. 58 (repealed 1943).
8. See, e.g., Iris Chang, The Chinese in America: A Narrative History 130-56 (2003)
(devoting an entire chapter to the Chinese Exclusion Act but never mentioning the Page
Law); Charles J. McClain, In Search of Equality: The Chinese Struggle Against
Discrimination in Nineteenth-Century America 149, 309 n.83 (1994) [hereinafter McClain,
In Search of Equality] (making only brief passing reference to the Page Law and
identifying the Chinese Exclusion Act as "the first federal immigration statute to single out
an ethnic group by name for invidious treatment"); Christian G. Fritz, Due Process, Treaty
Rights, and Chinese Exclusion, 1882-1891, in Entry Denied: Exclusion and the Chinese
Community in America, 1882-1943, at 25, 25-26 (Sucheng Chan ed., 1991) [hereinafter
Entry Denied] (discussing anti-Chinese sentiments in the 1870s but identifying the
Chinese Exclusion Act as the first law in the nation's history that excluded an immigrant
group on the basis of race); Kevin R. Johnson, Race, the Immigration Laws, and Domestic
Race Relations: A "Magic Mirror" into the Heart of Darkness, 73 Ind. L.J. 1111, 1120-24
(1998) (discussing legislation targeting Chinese immigrants, but omitting reference to the
Page Law); Hiroshi Motomura, Immigration Law After a Century of Plenary Power:
Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545, 550-52
(1990) [hereinafter Motomura, Immigration Law] (tracing federal control over
immigration to Chinese Exclusion Act and referring to 1875 as falling within a "period
when the Burlingame Treaty of 1868 seemed to guarantee unrestricted immigration from
China," with no mention of the restrictions passed by the Page Law during that year); Peter
H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 3 (1984)
(tracing advent of "classical immigration law" ideology to the exclusion of Chinese during
the 1880s, without mentioning the Page Law); Todd Stevens, Tender Ties: Husbands'
Rights and Racial Exclusion in Chinese Marriage Cases, 1882-1924, 27 Law & Soc. Inquiry

COLUMBIA LAW REVIEW

[Vol. 105:641

Law as the decisive marker of a shift from state to federal control over
immigration, they do not focus on its targeting of Chinese prostitution. 9
Historians who have examined the Page Law have generally done so in
debates about the significance of the Page Law's impact on the formation
of Chinese families in the United States, 10 or in debating whether Chi271, 277 (2002) (identifying the Chinese Exclusion Act as the "first racially based
immigration restriction in United States history"); Patrick Weil, Races at the Gate: A
Century of Racial Distinctions in American Immigration Policy (1865-1965), 15 Geo.
Immigr. L.J. 625, 626 (2001) (identifying discrimination against Asians as originating from
two acts of Congress-the Naturalization Act of 1870 and the Chinese Exclusion Act of
1882-but omitting any reference to the Page Law).
9. See, e.g., Charles Gordon et al., Immigration Law and Procedure 1.03[2] [a],
2.01, 2.02[2] (rev. ed. 2004) (acknowledging that the Page Law marked an important shift,
but only mentioning in passing that it barred "convicts and prostitutes"); Hyung-chan Kim,
A Legal History of Asian Americans, 1790-1990, at 53-54 (1994) (discussing briefly the
Page Law in the context of laws excluding Chinese male laborers in the 1860s and 1870s);
Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental
Law 45, 217 n.9 (1996) (hereinafter Neuman, Strangers to the Constitution] (emphasizing
throughout book that the Page Law was the first federal immigration law, but only
acknowledging that the Page Law targeted prostitution in one footnote); Sarah H.
Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the
Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1, 106 &
n.727 (2002) (stating in passing that "Congress did not pass a major immigration act until
1875" and mentioning in footnote that the Page Law "prohibited the entry of convicts,
prostitutes, and involuntary 'Oriental' laborers"); Gregory Fehlings, Storm on the
Constitution: The First Deportation Law, 10 Tulsa J. Comp. & Int'l Law 63, 113 (2002)
(describing the Page Law as prohibiting the "entry of certain kinds of voluntary
immigrants"); Louis Henkin, The Constitution and United States Sovereignty: A Century
of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 855-56, 856 n.11 (1987)
(explaining that the Page Law was passed due to "unemployment, economic depression,
and growing 'nativism,' racism, and xenophobia," but mentioning only in a single footnote
that the law excluded prostitutes); Hiroshi Motomura, The Curious Evolution of
Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum.
L. Rev. 1625, 1626, 1632-33 (1992) [hereinafter Motomura, Curious Evolution]
(identifying 1875 as year of onset of federal immigration law, but not identifying the Page
Law's content). Recently, several scholars have started to fill this gap. See Cott, supra note
5, at 136-38 (explaining importance of the Page Law for Chinese immigration); Bill Ong
Hing, Making and Remaking Asian America Through Immigration Policy, 1850-1990, at
23 (1993) (noting that most historians have neglected the Page Law and offering a twoparagraph description of the Page Law's effects on immigration); Lucy E. Salyer, Laws
Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law 5
(1995) (tracing federal curtailment of state immigration regulation to 1876 and
mentioning the role of the Page Law).
10. See, e.g., George Anthony Peffer, If They Don't Bring Their Women Here:
Chinese Female Immigration Before Exclusion (1999) (arguing that the Page Law
prevented Chinese family formation in the United States); Benson Tong, Unsubmissive
Women: Chinese Prostitutes in Nineteenth-Century San Francisco 50, 57 (1994) (arguing
that enforcement of Page Law was lax); Sucheng Chan, The Exclusion of Chinese Women,
1870-1943, in Entry Denied, supra note 8, at 94, 106-09 (arguing that Page Law had
substantial effect on Chinese immigration); Lucie Cheng Hirata, Free, Indentured,
Enslaved: Chinese Prostitutes in Nineteenth-Century America, 5 Signs 3, 10 (1979)
(concluding that effect of Page Law was unclear); Adam McKeown, Transnational Chinese
Families and Chinese Exclusion, 1875-1943, 18 J. Am. Ethnic Hist. 73, 78 (1999)

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POLYGAMY, PROSTITUTION, AND fEDERALJZATION

647

nese prostitution was as widespread in California as Congress thought it


was.' These historians, however, have not explained how the Page Law's
regulation of sex and gender fits into the broader legal context of a developing federal power over immigration.
Placing the Page Law within its historical context of a cultural crisis
over the regulation of sexuality and marriage is crucial to developing a
complete understanding of the origins of federal immigration law. We
tend to think of immigration law as involving questions of national
boundaries, security, and identity, and aimed primarily at regulating labor. In this version of immigration policy, female immigrants are treated
either as auxiliary to male immigrant laborers or simply as their female
equivalents. 12 Conversely, the family has long been treated as "the quintessential symbol of localism"1 3 -a private phenomenon that, while it
may mimic the power dynamics of the public sphere, is nonetheless fundamentally separate. Yet regulation of marriage and the family and the
implementation of population policy are at the root of much of American
immigration law. 14 The Page Law is but one early example of Congress
regulating the marriages of female immigrants to shape the racial and
cultural population of the United States and is thus an early example of
federal law regulating in an area-the family-widely understood to fall
5
within the province of the states.'
More broadly, the Page Law and its Californian antecedents demonstrate the use of marriage and sexuality as means for achieving regulatory
ends that are otherwise prohibited. In both instances, legislators used
rhetoric about protecting the institution of marriage and the sexual purity of the community to pass exclusionary legislation. The strategy of
playing on such deep-seated values about the role of the family and the
centrality of marriage in society made these laws far more popular than
they otherwise would have been.
[hereinafter McKeown, Transnational Chinese Families] (arguing that exclusion laws were
'just one factor among many" in shaping Chinese migrant communities and the
establishment of Chinese families).
11. See, e.g., Yong Chen, Chinese San Francisco, 1850-1943: A Trans-Pacific
Community 75-87 (2000) (arguing that the number of non-prostitutes in San Francisco
was suppressed by census takers and others); Peffer, supra note 10, at 97-99 (arguing that
San Francisco census takers overcounted the number of Chinese women who were
prostitutes); Tong, supra note 10, at 15, 57 (estimating number of prostitutes and arguing
that prostitutes posed as wives to circumvent Page Law's provisions); Hirata, supra note 10,
at 23-25 (estimating number of prostitutes).
12. See, e.g., PeterJ. Spiro, Learning to Live with Immigration Federalism, 29 Conn.
L. Rev. 1627, 1631 (1997) (emphasizing labor policy origins of immigration law but
omitting reference to women, marriage regulation, or population policy).
13. Hasday, Federalism and the Family, supra note 6, at 1297.
14. See, e.g., Enid Trucios-Haynes, "Family Values" 1990's Style: U.S. Immigration
Reform Proposal and the Abandonment of the Family, 36 Brandeis J. Fam. L. 241
(1997-1998) (critiquing Commission on Immigration Reform's proposal to limit
immigration preferences to nuclear family members).
15. See discussion infra Part II.A.

COLUMBIA LAW REVIEW

[Vol. 105:641

This Article demonstrates that the regulation of sexuality, morality,


and marriage was a pervasive regulatory force in the development of immigration law. Part I tells the story of the development of animosity
against Chinese immigrants on the West Coast, documenting the fear of
Chinese marriage and sexual practices and the threat thereby posed by
Chinese reproduction. Part II shows how the California legislature attempted to use state laws targeting Chinese prostitutes to reduce the immigration of Chinese women without encroaching on areas of exclusive
federal control. Part III examines in detail legal challenges brought by
Chinese women who were detained under the California law, showing
both how these laws were enforced and how the courts understood them.
Part IV turns to the Page Law itself, analyzing its provisions, context, and
legislative history, as well as its modes of enforcement. This Part shows
that Congress adopted the same discriminatory strategies pioneered by
California, using the Page Law to target Chinese women without encroaching on the terms of the Burlingame Treaty. Finally, Part V shows
why paying attention to the Page Law matters in understanding the roots
of Chinese exclusion. Reading the Supreme Court's assertion of federal
power over immigration in light of Congress's passage of the Page Law,
we can see that the shift to federal power eliminated the possibility that
immigrants could bring equal protection claims challenging discriminatory immigration policies. This Part also shows how the Page Law continued to affect immigration by providing a foothold for anti-Chinese forces
that eventually led to the renegotiation of the Burlingame Treaty and the
Chinese Exclusion Act, and by pioneering a method of using marriage
norms to restrict Chinese women that was used to dramatic effect in the
enforcement of the Chinese Exclusion Act itself and later exclusion laws.
I. CHINESE WOMEN AND THE GROWING ANIMOSITY IN THE WEST

There are many histories of the Chinese in America, but most of


16
them treat male laborers as the standard and women as exceptional.
Focusing on the experiences of early female Chinese immigrants is difficult because of a troubling lack of sources: Chinese women during the
17
early period of migration left very few written records of their lives.
Thus, most scholarship concerning Chinese female immigration concentrates on the turn of the century and later, when women entered the
public sphere more prominently, Protestant missionary women began a
16. See, e.g., Kim, supra note 9, passim (describing anti-immigration policies as
racially motivated without examining racist or racial view of women); McClain, In Search of
Equality, supra note 8, at 55-56 (treating antiprostitution statutes as separate from other
anti-Chinese legislation).
17. See Judy Yung, Unbound Feet: A Social History of Chinese Women in San
Francisco 15-51 (1995) [hereinafterYung, Unbound Feet] (discussing the lives of Chinese
women during this period).

2005]

POLYGAMY, PROSTITUTION, AND FEDERALIZATION

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public campaign against Chinese prostitution, 18 and some women, such


as the prostitute Wong Ah So, published their memoirs. 1 9
While the voices of Chinese women are missing from the early years
of their immigration, newspaper articles, political speeches, the legislative
history of the Reconstruction Amendments and implementing statutes,
and congressional testimony reveal the roots and breadth of the animosity toward them. This Part uses these sources to reconstruct the history of
that animosity, demonstrating that the motives of the anti-Chinese movement included not only preservation of labor markets for white laborers,
but also the prevention of the development of Chinese families and culture through the migration of Chinese women.
A. The Economic Origins of Chinese Immigration
Chinese immigrants first began coming to the United States in large
numbers in the late 1840s after news of the discovery of gold in California
reached China.2 0 During the 1840s and 1850s, railroad companies actively recruited Chinese men as laborers. 2 ' Although most of these men
worked in rural settings, by 1852 the city of San Francisco had a noticeable Chinese population. Of the city's 2,954 Chinese residents, only 19
22
were women.
Industrialists came to depend on Chinese workers as a source of
cheap labor. In fact, ninety percent of the workers who built the Central
Pacific Railroad were Chinese.2 3 Chinese cooks, laundry owners, and domestic workers had the reputation of having a strong work ethic and being willing to work for very low wages. 24 When they finally completed the
Central Pacific Railroad in 1869, the Chinese no longer had work, and
thousands of them moved to San Francisco. 2 5 There, they made major
inroads into the "boot and shoe, woolens, cigar and tobacco, and sewing
18. See, e.g., M.G.C. Edholm, A Stain on the Flag, S.F. Chron., Oct. 27, 1904, at 9,
reprinted in Judy Yung, Unbound Voices: A Documentary History of Chinese Women in
San Francisco 124, 128-43 (1999) [hereinafter Yung, Unbound Voices].
19. See Wong Ah So, Memoirs, in Donaldina Cameron, New Lives for Old Chinatown,
57 Missionary Rev. of the World 329 (1923), reprinted in Yung, Unbound Voices, supra
note 18, at 201, 203-10.
20. Kim, supra note 9, at 47.
21. Hing, supra note 9, at 20.
22. Tong, supra note 10, at 3 (citing California Legislature, Population Schedules of
California, 1952: City and County of San Francisco (Family History Dep't of the Church of
Jesus Christ of Latter-day Saints, microfilm copy)). Kim reports that the Chinese
population of all of California exceeded 45,000 by the end of 1852. Kim, supra note 9, at
47. The ratio of women to men in the non-Chinese population was one for every three.
Tong, supra note 10, at 4.
23. Salyer, supra note 9, at 8.
24. Hing, supra note 9, at 20. For example, Chinese laborers accepted wages of eight
dollars per month to prepare the land for California's first vineyards; the going rate for
white workers was thirty dollars per month. Id. at 253 n.48.
25. Ronald Takaki, A Different Mirror: A History of Multicultural America 198
(1993) [hereinafter Takaki, A Different Mirror].

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[Vol. 105:641

industries. '26 The number of Chinese in California continued to grow


rapidly during these years: In 1860, there were 34,933 Chinese in California, in 1870, there were 49,277, and by 1880, there were 75,132.27 By
1870, 8.8% of Californians were Chinese, 28 as well as 25% of wage
29
earners.
Animosity toward the Chinese began even before their immigration
to the United States. Anti-Chinese rhetoric was first expressed in sexualized terms as early as the 1830s, when the advent of the penny press provided white America with "lurid accounts of bizarre Chinese customs
[and] sexual aberrations. '3 0 As early as the 1850s and 1860s, white min31
ers and railroad workers had formed anti-Chinese clubs.
The federal government, however, initially saw Chinese immigration
as a positive gain, and Congress ratified the Burlingame Treaty in 1868.32
The treaty was ratified during a period following the Civil War when the
United States was aggressively expanding into foreign markets through
international trade.3 3 Under its terms, China and the United States recognized the "inherent and inalienable right of man to change his home
and allegiance, and also the mutual advantage of the free migration and
emigration of their citizens and subjects, respectively, from the one country to the other, for purposes of curiosity, of trade, or as permanent residents. ''3 4 The treaty also provided for reciprocal grant of "the same
privileges, immunities, and exemptions in respect to travel or residence
as may there be enjoyed by the citizens or subjects of the most favored
35
nation."
Despite the federal government's open policy toward Chinese immigration, anti-Chinese sentiment grew in the West. The years following
the ratification of the Burlingame Treaty were a time of economic depression. 36 The mines were no longer profitable, California suffered a harsh
drought, and the stock market crashed, resulting in widespread unem26. Id.
27. Census Office, Dep't of the Interior, Statistics of the Population of the United
States at the Tenth Census (June 1, 1880), at 378-79 tbl.IV (1883).
28. See id.
29. Salyer, supra note 9, at 10.
30. Id. at 8.
31. See id. (stating that before 1870, some white laborers formed clubs to protest the
presence of Chinese in the mines and railroad construction); see also Hing, supra note 9,
at 21 (noting that anti-Chinese clubs "surfaced in the early 1850's").
32. Burlingame Treaty, supra note 4.
33. See Walter LaFeber, The American Age: United States Foreign Policy at Home
and Abroad Since 1750, at 148-52 (1989) (describing America's evolution into a
superpower through industrialization, aggressive trade practices, and the use of immigrant
labor).
34. Burlingame Treaty, supra note 4, art. V, 16 Stat. at 740.
35. Id. art. VI, 16 Stat. at 740.
36. Kim, supra note 9, at 55-56.

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POLYGAMY, PROSTITUTION, AND FEDERALIZATION

651

ployment. 37 White laborers began to blame their economic troubles on


the Chinese. By the 1870s, anti-Chinese clubs had formed in the cities 38
and, at times, mob violence erupted against Chinese immigrants. 39
Charles McClain has succinctly summarized the feelings behind the
movement against Chinese laborers: " [T] hey worked too hard (often for
less pay than others were willing to accept), saved too much, and spent
40
too little."
But the sheer number of Chinese laborers willing to work for so little
was not the only fault attributed to them: Both Chinese men and Chinese women were accused of taking part in a system of slavery. Even in
the early 1850s, when economic prospects still appeared bright for white
laborers, politicians expressed concern that the Chinese were practicing a
kind of slavery by performing "coolie labor": indentured servitude
through long-term labor contracts, sometimes due to kidnapping. Thus,
Chinese laborers were branded as "coolies," 4 1 and by extension Chinese
prostitutes were "female coolies. ' ' 4 2 In 1852, California Governor John
Bigler delivered a special address to the state legislature in which he
warned that the Chinese were practicing coolie labor and that this practice threatened California's economy.

43

In reality, Chinese immigrants to America were not "coolies"; they


were voluntary immigrants, many of whom used a "credit-ticket system" to
pay for their passage. 44 Under this system, an immigrant would borrow
money from a broker to pay for his passage, then repay the amount borrowed (plus interest) out of the earnings from his firstjob. 45 In contrast,
37. See id.; see also Salyer, supra note 9, at 9 (noting that shortly after the adoption of
the Burlingame Treaty, a severe depression "resulted in reduced wages and widespread
unemployment").
38. See Fourth Ward Democratic Club-Exciting Meeting-Formation of an AntiChinese Society-Etc., S.F. Chron., July 20, 1870, at 3 (on file with the Columbia Law
Review).
39. See Ronald Takaki, Iron Cages: Race and Culture in Nineteenth-Century America
248 (1979) (discussing massacre of twenty-eight Chinese miners in Rock Springs, Wyoming
in 1885, and killing of twenty-one Chinese in Los Angeles by a white mob in 1871); Howard
Zinn, A People's History of the United States 259-60 (quoting an obituary for one Wan
Lee, who was stoned to death in the streets of San Francisco by a mob of schoolchildren in
1869). Bill Ong Hing has identified a similar pattern throughout the history of Asian
American immigration to the United States: cycles of acceptance, motivated by the desire
for "cheap, rootless, and dependable labor" followed by rejection caused by "racial
prejudice and fear of economic competition." Hing, supra note 9, at 17.
40. McClain, In Search of Equality, supra note 8, at 10.
41. "Coolie" was a term used to describe "unfree laborers who had been kidnapped or
pressed into service by coercion and shipped to foreign countries." Ronald J. Takaki,
Strangers from a Different Shore: A History of Asian Americans 36 (1990) [hereinafter
Takaki, Strangers].
42. See infra text accompanying notes 92-95.
43. Governor John Bigler, Governor's Special Message (Apr. 23, 1852), reprinted in
Alta Cal., Apr. 25, 1852, at 2 (on file with the Columbia Law Review).
44. Takaki, Strangers, supra note 41, at 36.
45. Takaki, A Different Mirror, supra note 25, at 193-94.

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Chinese men and women immigrating to other countries, such as the


Kingdom of Hawai'i, really were coolies: They were granted "free" passage and room and board upon arrival in return for a five-year labor contract.46 Worse still, thousands of Chinese were kidnapped or pressed into
service and shipped to Cuba and Peru. 47 But even though Chinese laborers immigrated to the United States voluntarily, the prevailing viewpoint
among whites at the time was that Chinese laborers were effectively slaves.
By the 1870s, animosity toward Chinese labor had prompted serious
political action. An "Anti-Chinese Convention" held in San Francisco in
1870 issued a platform that endorsed the eight-hour workday as "a natural division of time for labor, recreation, and rest" that "expands the
mind, dignifies labor, and elevates man," and called for the exclusion of
the Chinese from California. 48 The platform linked the practice of indentured servitude explicitly to both an undermining of white labor and
of bedrock principles of American democracy:
[T] he system of importing Chinese or Asiatic coolies into the
Pacific States, or into any portion of the United States, is in
every respect injurious and degrading to American labor, forcing it, as it does, into unjust and ruinous competition, placing
the white workingmen entirely at the mercy of the coolie employer, and building up a system of slavery in what should be a
free land....
[T]his evil attacks the most sacred rights of the Ameri[.T.
can people, the stability of our Government and its institutions;
[impairs] the right of the employed to receive from the employer a reasonable and just stipend . . .and as such must be
classed as a national calamity, to be removed and crushed out by
the enactment of laws, having for their end the entire suppression of Chinese importation or immigration, whether voluntary
49
or otherwise.
Lawmakers became increasingly concerned about the link between
coolieism and slavery following the Civil War. Havingjust eradicated slavery in their own land, they were quick to see links between this practice
and the "barbaric" and "ancient" customs of others. The myth that the
Chinese were sending coolies to work in the United States became linked
conceptually to the institution of chattel slavery. By extension, the "inherent" propensity of the Chinese to slave-like behavior became a reason
to exclude them from the country altogether.

46. Takaki, Strangers, supra note 41, at 35-36.


47. Id.
48. Anti-Chinese Convention, S.F. Chron., Aug. 19, 1870, at 3 (on file with the
Columbia Law Review).
49. Id.

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B. Marriage,Morals, and the Threat of Chinese Women


Given the centrality of male laborers to the anti-Chinese movement,
one might expect its efforts to have concentrated primarily on excluding
Chinese men from California. But what happened was more complicated. Although there was an active movement to exclude Chinese generally from the United States, which eventually led to the passage of the
Chinese Exclusion Act of 1882,50 many earlier efforts to exclude the Chinese concentrated not on Chinese men but on Chinese women. The
dominant strategy was to pass laws that excluded prostitutes for lewd behavior. These laws were then overenforced, effectively excluding Chinese
women in general.
The impulse to exclude Chinese prostitutes stemmed from the
profound differences between Chinese attitudes toward sexuality and
family structure and the more rigid American system in which monogamous marriage was the only permissible outlet for female sexuality. 5 1 Unlike the American dichotomy of proper wives versus prostitutes, the Chinese system is better described as a continuum in which a Chinese
woman's status was dependent on her sexual relationships with Chinese
men: First wives enjoyed the highest status, followed by second wives and
concubines, 5 2 followed in turn by several classes of prostitutes. 53 Americans responded to this system in two ways: through a fascination with
polygamy and through a conviction that the Chinese treated all women,
whether wives in polygamous relationships or prostitutes, as slaves.
1. Chinese Marriage Customs: Polygamy54 and Prostitution.- The perception that most female Chinese immigrants were prostitutes was to a
large extent an accurate one. Census reports indicate that by 1870 there
were upward of two thousand Chinese women living in San Francisco,
and that a majority-somewhere in the neighborhood of seventy percent-were prostitutes. 55 Recently, historian George Anthony Peffer has
argued persuasively that this number was exaggerated by census takers
50. Act of May 6, 1882 (Chinese Exclusion Act), ch. 126, 22 Stat. 58 (repealed 1943).
51. For a cross-cultural theory of how societies inscript their moral order onto
women's bodies, see Seyla Benhabib, The Claims of Culture: Equality and Diversity in the
Global Era 83-84 (2002).
52. See infra note 74 and accompanying text.
53. According to one scholar, there were as many as ten different layers in the
prostitution industry in China. Gail Hershatter, Dangerous Pleasures: Prostitution and
Modernity in Twentieth-Century Shanghai 42-56 (1997); see also Chen, supra note 11, at
79 (noting that articles about prostitution in Chinatown newspaper The Oriental did not
condemn prostitutes).
54. Polygamy refers to marriage in which a spouse of either sex has more than one
mate at a time. Polygyny refers to the practice of having more than one wife at a time;
polyandry to the practice of having more than one husband. 12 Oxford English Dictionary
59 (2d ed. 1989). Technically, then, the practice that disturbed lawmakers was polygyny. I
refer to the practice here as polygamy, since that is the more common term and the one
used in the historical documents.
55. Peffer, supra note 10, at 6, 124 n.13; Tong, supra note 10, at 98 tbl.3; Chan, supra
note 10, at 107; Hirata, supra note 10, at 24.

654

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and that the real number was somewhere closer to fifty percent. 56 Even
the fifty percent figure represents a significant portion of Chinese women. Those who were not classified as prostitutes were reported to be
laundresses, miners, servants, seamstresses, cooks, or lodging house
57
operators.
Deteriorating economic conditions in China rendered families destitute, contributing to the immigration of both ordinary women and prostitutes. 5 8 The traffic in Chinese prostitutes was dominated by tongs (secret
criminal gangs), who sent representatives to China to procure girls from
their families. In an attempt to ameliorate their economic conditions,
many families sold their daughters to tong representatives, who claimed
56. Peffer, supra note 10, at 11. Peffer estimates that California census records for
1870 underreported the number of Chinese non-prostitute wives by over five hundred. If
the numbers were really as high as those reported by census takers, Peffer reasons, there
would have been a massive overabundance of prostitutes in Chinatown, yet prostitutes
remained very valuable commodities for importation, worth as much as $2,500. Id. at 7
(citing Hirata, supra note 10, at 12). Much of the inaccuracy resulted from the census
takers' ignorance of Chinese culture. In his detailed analysis of the 1870 census, for
example, Peffer found that one census taker, an Irish immigrant unfamiliar with Chinese
culture, found that ninety percent of the women in his jurisdictions were prostitutes, where
another census taker, who as head of the Chinese Protection Society had greater familiarity
with Chinese culture and marriage customs, found that approximately half of the women
in his jurisdiction were prostitutes. Id. at 90-94 & nn.17-47. Single women living in
households with men were presumed by census takers to be prostitutes, even if the men
they lived with were members of their extended family. But many Chinese residents of San
Francisco's Chinatown lived in large, mixed-gender groups, so it is likely that many
women-both single and married-who were not prostitutes lived in household groups
that included several men. Id. at 91 (stating that the average mixed-gender dwelling in San
Francisco's Chinatown contained seventeen people). Sue Fawn Chung has discovered
similar problems with the 1870 census for Virginia City, Nevada. Sue Fawn Chung, Their
Changing World: Chinese Women on the Comstock, 1860-1910, in Comstock Women:
The Making of a Mining Community 203, 208 (Ronald M. James & C. Elizabeth Raymond
eds., 1998).
57. Tong, supra note 10, at 95 tbl.2. It is unsurprising that women who were
prostitutes did not hide their profession from census takers-prostitution as a status was
not illegal, although "keeping a house of ill fame" or being an "inmate of a house of ill
fame" was. Id. at 115.
58. Ninety percent of the Chinese who immigrated to America were from Guangdong
province. Guangdong had undergone an enormous growth in population during the early
1800s. This growth, combined with a crumbling economy in the wake of the Opium Wars
and a shortage of arable land, resulted in a rice shortage and left many residents in
extreme poverty. In this weakened state, China in general-and Guangdong in
particular-became vulnerable to armed uprisings and local conflicts throughout the
1850s and 1860s. In addition, Guangdong was the site of myriad natural disasters from the
1830s to the 1870s, including droughts, floods, typhoons, crop failures, and famines. See
Hing, supra note 9, at 19-20 (noting that dramatic population increases, rice shortages,
and an unstable political situation led many Chinese to immigrate to America); see also
Tong, supra note 10, at 35-44 (describing the impact of European economic imperialism
and natural disasters). But see Chen, supra note 11, at 40 (arguing it was not poverty but
"[a] dynamic market economy that had existed there for decades" that "produced
individuals who were able to appreciate the significance of the news about California gold
and who were willing to act on their understanding of the importance of this news").

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POLYGAMY, PROSTITUTION, AND FEDERALIZATION

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to want the girls as indentured servants or as brides. 59 These sales were


often fraudulent, and, unbeknownst to her parents, a girl sold as a bride
or a servant would be put to work as a prostitute. Other women were
lured into prostitution by fictitious offers of marriage or were kidnapped
outright. 60 Many others appear to have voluntarily emigrated in order to
better themselves financially through prostitution. 61 A few Chinese prostitutes were successful, becoming property owners and brothel owners or
62
operators.
Of course, prostitution was not an exclusively Chinese phenomenon. 63 Throughout the West, prostitution was prevalent wherever men
migrated without families. 64 Even in Chinese neighborhoods of San
Francisco, there were native-born whites, European immigrants, Latin
American immigrants (mostly from Mexico), a smattering of African
American women, and Native Americans working as prostitutes. 6 5 Still,
Chinese prostitutes outnumbered all of the others combined, probably
due to the greater gender disparity among Chinese immigrants, the
unique conditions of poverty in China at the time, and the tongs' pro66
curement of prostitutes from China.
As increasing numbers of white women and families began to settle
in San Francisco and other parts of the West, prostitution began to be
frowned upon rather than welcomed. Just as they were later targeted
through restrictive immigration laws, Chinese prostitutes were uniquely
identifiable legal targets: An 1866 California law declared Chinese
houses of prostitution to be public nuisances; 67 it was not until 1874 that
59. Tong, supra note 10, at 40.
60. See id. at 40-44; see also Hirata, supra note 10, at 9-12, 15 (describing the
methods San Francisco brothels used to obtain women-mainly "luring and kidnapping").
61. Tong, supra note 10, at 42 (explaining that few women sold into prostitution
expressed resentment because they knew their sacrifice was so that "the family could live").
For a critique of the distinction between "forced" and "voluntary" prostitution, see Jo
Doezema, Forced to Choose: Beyond the Voluntary v. Forced Prostitution Dichotomy, in
Global Sex Workers: Rights, Resistance and Redefinition 34, 34-35 (Kamala Kempadoo &
Jo Doezema eds., 1998).
62. Chen, supra note 11, at 79.
63. Anne M. Butler, Daughters of Joy, Sisters of Misery: Prostitutes in the American
West, 1865-90, at 4-7 (1985) (noting that Chinese women made up a very small
percentage of the total prostitute population in the West).
64. Tong, supra note 10, at 4-5; see Butler, supra note 63, at 50 ("[P]rostitutes
gravitated toward those communities with employment opportunities. They hunted out
the mining towns, the construction sites, the military outposts, the cattle terminals, the
supply stations, as well as the larger urban centers of the frontier."); id. at 53 ("[T]he daily
customers who sought and supported the prostitutes on the frontier came from those
bachelor collections that the women followed across the frontier."); see also Marion S.
Goldman, Gold Diggers and Silver Miners: Prostitution and Social Life on the Comstock
Lode 16-17 (1981) (explaining that few working-class men on the Comstock Lode were
able to bring wives, creating a demand for prostitution).
65. Peffer, supra note 10, at 130 n.17.
66. See id. at 12-13, 31.
67. Act of Mar. 21, 1866, ch. 505, 1866 Cal. Stat. 641.

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the word "Chinese" was stricken from the law and all houses of prostitu68
tion were declared nuisances.
Despite the large numbers of Chinese women working as prostitutes
in San Francisco, many of the women who came to the United States as
immigrants from China came not as prostitutes but as laborers and wives.
There are several documented instances of Chinese women accompanying their husbands on the voyage to America as early as the 1850s and
1860s. 69 By 1876, at0 least several hundred recognizable families had re7
unified or formed.
Census takers may have underestimated the number of wives living
in Chinatown because they failed to distinguish among second wives, concubines, and prostitutes. The household structure in prerevolutionary
China was significantly different than in most American homes. Three
generations lived together, and while the husband was the patriarchal
head of the family, the husband's mother ruled within the realm of the
household. 7 1 If a man could afford to, he would take on more than one
wife. 72 Men also took concubines to produce heirs if their wives were
childless. 73 The "primary wife"-usually the first wife-enjoyed a higher
status than the secondary wives and was responsible for the care of the
family residence in China and the children. 7 4 Because the first wife
tended to remain with the husband's family in China, many Chinese women in the United States were "secondary wives." 75 Furthermore, the distinction between "wife" and "prostitute" was not static: Many women
brought to the United States as prostitutes later escaped prostitution by
76
becoming the wives of Chinese laborers.
Some historians have also argued that there may have been groups
of Chinese women living together in San Francisco who were neither
68. Act of Feb. 7, 1874, ch. 76, 1874 Cal. Stat. 84.
69. See Takaki, A Different Mirror, supra note 25, at 210-11.
70. Id. at 211.
71. Yung, Unbound Feet, supra note 17, at 45-46.
72. Id. at 19, 320 n.89; Adam McKeown, Conceptualizing Chinese Diasporas, 1842 to
1949, 58J. Asian Stud. 306, 318 (1999); see also Record at 37-38, Chy Lung v. Freeman, 92
U.S. 275 (1876) (No. 478) (testimony of Chung Fing).
73. Peggy Pascoe, Gender Systems in Conflict: The Marriages of Mission-Educated
Chinese American Women, 1874-1939, in Unequal Sisters 139, 141 (Vicki L. Ruiz & Ellen
Carol DuBois eds., 2d ed. 1994).
74. Chang-tu Hu, China: Its People Its Society Its Culture 170 (1960) ("A concubine,
unlike a mistress, had legal rights, but these were inferior to those of the first wife .... It
was easier to divorce a concubine, who was socially inferior to the wife.").
75. See McKeown, Transnational Chinese Families, supra note 10, at 98-99.

76. See Yung, Unbound Feet, supra note 17, at 41. Lucie Cheng Hirata has noted
that Chinese working people did not attach a stigma to prostitution because prostitutes in
China were not seen as "fallen women" but as daughters who obeyed the wishes of their
families. Women in China who left prostitution were therefore usually accepted in
working-class society. This cultural difference, together with a shortage of women in San
Francisco, resulted in Chinese men being willing to take former prostitutes as wives.

Hirata, supra note 10, at 19.

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POLYGAMY, PROSTITUTION, AND FEDERALIZATION

657

wives nor prostitutes. In the Pearl River Delta area (the area in the
Guangdong Province from which most San Franciscan Chinese emigrated), there was a longstanding tradition of unmarried women who
lived in "girls' houses. '77 These women were called zishu nu, or "selfcombed women," because they underwent a ceremony in which they
combed their hair in a certain way and declared their intention to live
without husbands. 78 Groups of "self-combed women" would live together
as "sworn sisters," sometimes even adopting children. The sworn sisters
and their adopted children functioned as financially independent family
units. 79 They performed valuable labor, such as rearing silkworms, tending mulberry trees, spinning silk threads, and weaving, that gave them
financial independence.8 0 Some of them may have been lesbians.,
Chen speculates that census takers may have overreported the number of
brothels in San Francisco because they were unaware of the tradition of
"self-combed women" and therefore assumed that any house consisting
only of women must by definition be a brothel.8 2 It is difficult to ascertain from census figures, however, whether "self-combed women" mi8 3
grated to San Francisco.
In short, most Chinese women who migrated to California during
the 1860s and 1870s were second wives, concubines in polygamous marriages, or prostitutes. Americans were right to conclude that the Chinese
were more tolerant of prostitution and that they practiced polygamy, but
were certainly wrong to believe that all female Chinese immigrants
worked as prostitutes. Ultimately, however, the technical truth of
whether a particular woman worked as a prostitute was not what mattered: Polygamy and prostitution were taken as evidence that Chinese
culture embodied a slave-like mentality.
2. The Link to Slavery. - Moral opprobrium of prostitution and polygamy had particular resonance following the Civil War. The public debate over emancipation and the ultimate abolition of slavery brought new
focus to the evils of coercion, not only in labor, but also in marriage and
sexual relations. Prostitution, which had been prevalent throughout the
developing West, began to be viewed through this lens. Prostitution was
77. Chen, supra note 11, at 82-83;Janice E. Stockard, Daughters of the Canton Delta:
Marriage Patterns and Economic Strategies in South China, 1860-1930, at 31-41 (1989).
78. Stockard, supra note 77, at 70 (Stockard transliterates the term as 'jihso neuih").
79. Chen, supra note 11, at 83.
80. Yung, Unbound Feet, supra note 17, at 20.
81. Id; see also McKeown, Transnational Chinese Families, supra note 10, at 99-100
(noting that many female silk laborers practiced "delayed transfer marriage" in which they
did not move into their husbands' homes until years after marriage, if ever, and sometimes
purchased a secondary wife for him as compensation, and that others joined "spinster
houses" or married the ghosts of dead men to avoid marriage).
82. Chen, supra note 11, at 83.
83. See McKeown, Transnational Chinese Families, supra note 10, at 100 (arguing
that delayed transfer marriage was restricted to localized areas where silk production
offered an independent source of income for women).

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the antithesis of marriage,8 4 and frequently compared to slavery. 5 As


Amy Dru Stanley has written of the period, prostitution "appeared to embody all the forces threatening the legitimacy of contract as a model of
freedom.... [I] t revealed not simply the corrosive aspects of free market
relations but also the fragility of home life as their institutional and emotional counterweight. '8 6 Marriage, in contrast, was based on "true love
and consent,"37 and conceived of as part of the private sphere, protected

from the taint of commerce. Or, in the words of the historian Nancy
Cott, "Prostitution and marriage were opposites: where marriage implied
mutual love and consent, legality and formality, willing bonds for a good
bargain, prostitution signified sordid monetary exchange and despera88
tion or coercion on the part of the woman involved."
The links between marriage and consent and between prostitution
and coercion may explain the widespread belief that all Chinese women
were prostitutes and that all or nearly all of them were kidnapped or
duped into migrating.89 Nancy Cott has attributed this thinking to the
"Victorian presumption that women felt only minimal sexual desire, and
would engage in sex willingly only for love or the prospect of maternity."9 0 Unfortunately for Chinese female immigrants, the purported involuntariness of their participation in prostitution did not make them
more sympathetic as immigrants. The problem was their slavish character: White women "so much better understood" their rights that they
were less likely to be duped into indentured servitude and were therefore
less of a moral threat. 9 1

The perceived docility of Chinese prostitutes was explained as part of


their nature: If Chinese men were innately coolies, willing to indenture
themselves into servitude, Chinese women were innately prostitutes, willing to do the same thing in sexualized terms. In a statement published in
the San FranciscoChronicle, U.S. Senator Cole, of California, promised that
Congress would legislate "to prevent the importation of these female coo84. Cott, supra note 5, at 137.
85. Stanley, supra note 6, at 219.
86. Id.
87. Cott, supra note 5, at 137.
88. Id. at 136.
89. See, e.g., Report of the Joint Special Committee to Investigate Chinese
Immigration, S. Rep. No, 44-689, at 456-57 (1876), reprinted in U.S. Congress, Report of
the Committees of the Senate of the United States for the Second Session of the FortyFourth Congress (Washington, Gov't Printing Office 1877) [hereinafter Committee
Report] (testimony of Rev. Augustus W. Loomis) ("These women have not generally or to
any considerable extent come to California of their own choice .... It is believed that very
many of these unfortunate women would abandon the places where they are kept if
opportunity was afforded them.").
90. Cott, supra note 5, at 137.
91. Committee Report, supra note 89, at 146-48 (statement of Alfred Clarke, Clerk at
the San Francisco Police Department).

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POLYGAMY, PROSTITUTION, AND FEDERALIZATION

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lies, as well as males." 92 Coolies and citizens were antithetical: A person


willing to submit him or herself to a system of slavery could not adequately participate in a democracy. In arguing that the Chinese made
poor citizens, Representative Higby listed not only their failure to learn
English, unusual religious practices, and refusal to assimilate, but, most
tellingly, Higby focused on their treatment of women as prostitutes:
Judging from the daily exhibition in our streets, and the well
established repute among their females, virtue is an exception
to the general rule. They buy and sell their women like cattle,
and the trade is mostly for the purpose of prostitution. That is
their character. You cannot make citizens of them. 93
Chinese culture, then, was believed to condone a form of slavery that
was antithetical to American notions of marriage and consent. This culture had almost biological roots in the Chinese race; 94 their "servile disposition" was "inherited from ages of benumbing despotism." 9 5 This
ideal of slavery was made manifest in the figure of the Chinese prostitute.
Prostitution, like coolie labor, was seen as analogous to slavery.
Like prostitution, polygamy was also linked to slavery. As early as
1856, when the Republican national convention adopted a platform calling for the abolition of both polygamy and slavery in the Western territo96
ries, the two practices were referred to as the "twin relics of barbarism."
Indeed, the analogy between slavery and polygamy was a "deep, almost
literal, equation" because slavery as practiced in the South before the
Civil War often was a type of polygamy, which "gave white masters free
sexual access to a virtual harem of black women slaves."'9 7 No woman,
antipolygamists argued, could actually consent to a "system as fundamentally contrary to her interests as polygamy" 98 (just as no woman would
consent to prostitution). One Indiana congressman proposed that the
92. Cornelius Cole: The Senator Interviewed by a Chronicle Reporter, S.F. Chron.,
Oct. 23, 1870, at 1 (on file with the Columbia Law Review) [hereinafter Cole Interview].
93. Cong Globe, 39th Cong., 1st Sess. 1056 (1866) (statement of Rep. Higby); see also
Cong. Globe, 40th Cong., 3d Sess. 1032 (1869) (statement of Sen. Conness) ("I suppose it
will not be gainsayed by any person who is acquainted with the Chinese character and
population that not one in ten thousand of them has any capacity whatever for American
citizenship.").
94. Although the term "Chinese" is used to refer both to the nationality and the Han
ethnic group, nineteenth-century Americans did not see such a distinction and consistently
referred to the Chinese as a race (or as part of the "Mongolian" race). See Frank Dik6tter,
Race in China, in A Companion to Racial and Ethnic Studies 495, 495-96 (David Theo
Goldberg &John Solomos eds., 2002).
95. Committee Report, supra note 89, at vi.
96. Sarah Barringer Gordon, The Mormon Question: Polygamy and Constitutional
Conflict in Nineteenth Century America 55 (2002); see also Akhil Reed Amar & Daniel
Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, 105
Harv. L. Rev. 1359, 1366 & n.1 9 (1992) (citing Republican Party Platform of 1856, in
National Party Platforms 1840-1972, at 27, 27 (Donald Bruce Johnson & Kirk H. Porter
eds., 1973)).
97. Amar & Widawsky, supra note 96, at 1366.
98. Gordon, supra note 96, at 173.

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Freedman's Bureau should protect Mormon plural wives, since they were
indistinguishable from slaves. 9 9
Even where it existed independently from the nation's history of
chattel slavery, as with the practice of polygamy by members of the Mormon church, polygamy appeared to be synonymous with slavery. The
Mormon practice of polygamy outraged lawmakers, not only because it
appeared to promote lasciviousness, but also because it created a form of
despotism that extended beyond the family into the political realm:
As to polygamy, I admit, nay, I charge it to be a crying evil; sapping not only the physical constitutions of the people practicing
it, dwarfing their physical proportions and emasculating their
energies, but at the same time perverting the social virtues, and
vitiating the morals of its victims.... It is often an adjunct to
political despotism; and invariably begets among the people
who practice it the extremes of brutal blood-thirstiness or timid
and mean prevarication. 0 0
The antipolygamist movement inspired unprecedented federal action against the Mormon church. In 1862, Congress passed the Morrill
Act for the Suppression of Polygamy. 10 1 The Act was designed to attack
the Mormon-controlled legal system in Utah by, among other things, outlawing polygamy in the territories. 10 2 The Morrill Act, like the Page Law
after it, represented a dramatic and unprecedented exercise of federal
power. 10 3 The argument that polygamy was so threatening that it mandated the exercise of federal power to eradicate it resurfaced again the
1880s, with the proposal of a "United States marriage law" that would
have implemented uniform divorce laws and prevented rogue states like
Indiana and Utah (where polygamous marriages in particular led to high
0 4
rates of divorce) from "sapping the nation's moral strength."1
The Supreme Court itself endorsed the theory that polygamy led to
political despotism in its opinion in Reynolds v. United States,10 5 in which it
upheld the provisions of the Morrill Act that made polygamy a crime.
Citing the political scientist Francis Lieber, the Court classified polygamy
as a type of slavery, one that "leads to the patriarchal principle, and
99. Cott, supra note 5, at 113.
100. Cong. Globe, 36th Cong., 1st Sess. 1514 (1860) (statement of Rep. McClernand).
101. Act of July 1, 1862 (Anti-Polygamy Act), ch. 126, 12 Stat. 501 (repealed 1910).
102. Id. 1. The Act also annulled the Utah territorial legislature's incorporation of
the Church of Jesus Christ of Latter-day Saints and prohibited any religious organization
from owning real estate valued at more than $50,000. Id. 2-3.
103. As Professor Gordon has argued:
The federal government had never before assumed such supervisory power over
structures of private authority. The Morrill Act was unprecedented, especially in
light of the majority opinion in the Dred Scott case, which only five years before
had invalidated attempts to ban slavery in the territories .... [F]ederal legislation
on marriage was a prelude to action against slavery.
Gordon, supra note 96, at 81-82.
104. See id. at 177.
105. 98 U.S. 145 (1878).

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which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with
monogamy."1 0 6 This understanding of polygamy as a form of slavery created such pressure on the Mormon church that it officially repudiated
the practice in 1890.107 When Utah was finally admitted to the Union as
a state in 1894, it was admitted on the condition that "polygamous or
10 8
plural marriages are forever prohibited."
The Reynolds court traced the origins of polygamy to, among others,
the Chinese, explaining that " [p] olygamy has always been odious among
the northern and western nations of Europe, and, until the establishment
of the Mormon Church, was almost exclusively a feature of the life of
Asiatic and of African people."10 9 The same understanding of polygamy
influenced the debate over Chinese female immigrants. Even those who
were sympathetic to the Chinese commented on their practice of
polygamy:
Aside from prejudice, which proceeds from ignorance, there is
nothing in the habits or customs of the Chinese calculated to
injure the morals or business of any intelligent American community.... They are as religious, in their way, as the majority of
the inhabitants of this city, and their system of marriage, if not
in accord with our notions, is not worse than Mormonism and
Free Love. 110
Others were more vituperative in their identification of polygamy as
an innate Chinese trait. The "yellow race; the Mongol race" were a "people to whom polygamy is as natural as monogamy is with us," stated one
senator.1 1 1 The tendency to engage in polygamy was, like prostitution,
considered a racial trait, and its presence on the West Coast presented a
challenge to Christian, monogamous marriage. 112 Lawmakers needed to
find a way to keep Chinese women-the harbingers of disease and "moral
death" 1 1 3-out of the United States.
3. The Threat of Reproduction. - A slave-like nature in itself would
have been bad enough, but Chinese women posed an additional threat
not shared by men: the threat of reproduction. As long as Chinese men
migrated alone, the argument went, they would eventually return home
106. Id. at 166.
107. Cott, supra note 5, at 120.
108. Act of July 16, 1894, ch. 138, 3, 28 Stat. 107, 108.
109. Reynolds, 98 U.S. at 164.
110. H.C. Bennett, The Chinese in California: Their Numbers and Influence,
Sacramento Daily Union, Nov. 27, 1869, at 8 (on file with the Columbia Law Review).
111. Cong. Globe, 39th Cong., 1st Sess. 2891 (1866) (statement of Sen. Cowan).
112. Francis Lieber, in an unsigned article in Putnam'sMonthly, identified monogamy
as "one of the elementary distinctions-historical and actual-between European and
Asiatic humanity" and claimed that destroying monogamy would "destroy our very being;
and when we say our, we mean our race." The Mormons: Shall Utah Be Admitted into the
Union? 5 Putnam's Monthly 225, 234 (1855).
113. Cole Interview, supra note 92; see also infra text accompanying note 126.

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to China to be with their families or die in the United States." l 4 If Chinese women migrated, however, a second generation of Chinese would
be born.
Unlike their parents, the second generation would not be immigrants but citizens. Chinese immigrants could not be naturalized: When
Congress amended the Naturalization Act of 1790, which had limited naturalization to whites,' '5 it deliberately denied the Chinese the right to
naturalize, extending that right only to African Americans.' 1 6 But after
the Fourteenth Amendment was ratified in 1868, "all persons born or
naturalized in the United States" were citizens of the United States and
the state in which they resided.' 17 American-born Chinese were therefore American citizens.' 18 While Chinese men were undesirable in that
they provided competition for white labor, the addition of Chinese women provided an entirely new threat-a challenge to California's future
as a white, Christian state.' 19
The threat of reproduction was not only a literal threat that children
recognizable as racially Chinese would populate the West Coast, but also
that a second generation would make possible the reproduction of Chinese culture. The Pacific coast, Congress announced in 1876, "must in
time become either American or Mongolian. ' 120 Chinese immigrants
must be denied citizenship, the argument went, because the "Mongolian
race seems to have no desire for progress, and to have no conception of
representative and free institutions." 121 Denying the ballot to this "servile
22
class" was "a necessary means to public safety."'
Chinese women also posed a threat of miscegenation that would result in a weak, hybrid race. Nineteenth-century theories of race posited
several distinct races, each with innate characteristics, and held that mix23
ing these races would result in the degeneration of the superior race.'
114. See Committee Report, supra note 89, at 103 (statement of Frank M. Pixley, esq.,
representing the City of San Francisco) (stating that Chinese laborers come to the United
States "to earn a certain sum of money and return").
115. Act of Mar. 26, 1790 (Naturalization Act), ch. 3, 1, 1 Stat. 103, 103 (repealed
1795).
116. Act ofJuly 14, 1870 (Naturalization Act), ch. 254, 7, 16 Stat. 254, 256 (repealed
1952).
117. U.S. Const. amend. XIV, 1.
118. The right of American-born persons of Chinese descent to American citizenship
under the Fourteenth Amendment was ultimately confirmed in United States v. Wong Kim
Ark, 169 U.S. 649 (1898).
119. See Cott, supra note 5, at 135-38.
120. Committee Report, supra note 89, at v; see also id. at vii ("[T]heir number in
California at the present time is so great that they could control any election if the ballot
was put into their hands.").
121. Id. at v.
122. Id.
123. Cott, supra note 5, at 134-35 ("[W]hen 'lower' races intermingled with 'higher'
ones, the tendency of the whole was to 'degenerate' to the lower type."); see also Megumi
Dick Osumi, Asians and California's Anti-Miscegenation Laws, in Asian and Pacific

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Although social norms 12 4 and, later, antimiscegenation laws 125 prevented


Chinese immigrants from marrying whites, these laws did not prevent
Chinese prostitutes from bearing children fathered by their white customers. Chinese women were threatening not only because they might
reproduce with Chinese men but also because they could infect the white
population by producing weak, hybrid progeny. This fear of infection
and infiltration was expressed in literal terms in the language of disease.
Senator Cornelius Cole, interviewed by the San Francisco Chronicle, linked
Chinese women with both physical and moral disease as early as 1870:
[W] hen I look upon a certain class of Chinese who come to this
land-I mean the females-who are the most undesirable of
population, who spread disease and moral death among our
white population, I ask myself the question,
whether or not
1 26
there is a limit to this class of immigrants?
American Experiences: Women's Perspectives 1, 7 (Nobuya Tsuchida ed., 1982)
(explaining that nineteenth-century social scientists believed that American governmental
institutions were "designed by and for Teutonic people" and would be weakened by
'commingling" with Asians); Keith E. Sealing, Blood Will Tell: Scientific Racism and the
Legal Prohibitions Against Miscegenation, 5 Mich. J. Race & L. 559, 567 (2000) ("[I] t was
universally agreed that the addition of Black blood to White would degrade the White.").
124. In his testimony before the Joint Committee to Investigate Chinese Immigration
in 1876, the Rev. Augustus W. Loomis, a prominent missionary, testified that most Chinese
men did not marry white women:
There have been no more than four or five instances of Chinamen with white
wives in San Francisco, to my knowledge, and in every case they have brought
these wives with them from other places. Two or three married Irish women in
New York and brought them here. One brought a white wife from the West
Indies; one married in Australia; and we remember an instance of a Chinaman
taking a half-Mexican woman and living with her at San Jose, and another who
brought a half-breed woman from Peru. There has been no disposition to
intermarry here in California.
Committee Report, supra note 89, at 457.
125. California passed an antimiscegenation law in 1850, Act of Apr. 22, 1850, ch. 140,
3, 1850 Cal. Stat. 424, 424, then extended it in 1880 to target Asians. 1880 Acts
Amendatory of the Codes of California 3 (prohibiting clerks from issuing "a license
authorizing the marriage of a white person with a negro, mulatto, or Mongolian"); see also
Volpp, supra note 5, at 802. Most other Western states passed antimiscegenation statutes
targeting Asians in the years following. See, e.g., Act of Dec. 29, 1865, ch. 30, 1866 Ariz.
Sess. Laws 58, 58 ("All marriages of white persons with negroes, mulattoes, Indians, or
mongolians are declared illegal and void."), amended by Ariz. Rev. Stat. Ann. 3092 (West
1901) (adding "and their descendents"); Act of Jan. 9, 1867, ch. 11, 3, 1867 Idaho Sess.
Laws 71, 72 ("All marriages of white persons with negroes, mulattoes, Indians or Chinese
are declared to be illegal and void."); Mont. Code Ann. 5701-5702 (1935) (repealed
1953) (referring to "Chinese person" and "Japanese person"); Act of Nov. 28, 1861, ch. 32,
1, 1862 Nev. Stats. 93, 93 (making marriage between white man or woman and "black
person, mulatto, Indian, or Chinese" a misdemeanor); Or. Rev. Stat. Ann. 23-1010
(1940) (amended 1959) (barring whites from marrying "any person having one-fourth or
more negro, Chinese, or Kanaka blood"); S.D. Codified Laws 14.0106(4) (1939)
(repealed 1959) (referring to "Korean" and "Mongolian races"); Utah Code Ann. 40-12(6) (1943) (amended 1963) (referring to "Mongolian"); Wyo. Stat. Ann. 68-118 (Michie
1931) (repealed 1965) (referring to "Mongolians").
126. Cole Interview, supra note 92.

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Anti-Chinese animosity, then, was firmly rooted in fear of both the


competition Chinese men posed to white labor, and of the regenerative
and polluting power of Chinese women. Without women, Chinese men
could be controlled. If women were allowed to immigrate, they would
produce Chinese culture both literally and figuratively: by creating Chinese American children and by perpetuating Chinese culture. The culture they would perpetuate was a culture of hierarchy and slavery, antithetical to America's postwar self-image as a free nation based on
principles of freedom of contract. Thus, lawmakers used the abolition of
slavery to justify race-based discrimination against a new group-the Chinese. Chinese women were specifically targeted, first through the Californian statutes targeting "lewd or debauched women," 2 7 and then by the
federal Page Law itself.
II.

IMMIGRATION LAW BEFORE THE PAGE LAW

California's anti-Chinese statutes were passed during a period in


which courts had established Congress's sole authority over foreign affairs
but Congress had failed to occupy the field. Although scholars such as
Gerald Neuman have explored the state-based regulation of immigration
prior to 1875,128 and other scholars, such as Charles McClain, have noted
129
that California passed anti-Chinese laws during the same time frame,
no one has examined the important role played by the statutes targeting
Chinese women as prostitutes in California's struggle to retain state control over immigration. Just as Congress would later use the Page Law to
evade the constraints of the Burlingame Treaty, California attempted to
use antiprostitution laws to curb Chinese immigration by targeting women outside the protective sphere of marriage. The California Supreme
Court was convinced by this distinction, and thus this strategy appeared
130
to be effective until these laws were challenged in federal courts.
Part II.A first describes briefly the pre-Page Law history of state and
federal immigration law. Part II.B then places the California anti-Chinese
statutes, including those targeting Chinese women, within this context.
A. The Struggle for Control: The Federal Commerce Power Versus the State
Police Power
There is no clear constitutional source for federal power over immigration; if anything the Framers appear to have expressly avoided including such a power in the Constitution. The Naturalization Clause gives
Congress control over citizenship, not immigration. 1 31 On a literal read127. 1873-1874 Acts Amendatory of the Codes of California 70, at 39; see also infra
notes 224-228 and accompanying text.
128. Neuman, Strangers to the Constitution, supra note 9, at 19-43.
129. McClain, In Search of Equality, supra note 8, at 9-42.
130. See discussion infra Part III.
131. U.S. Const. art. I, 8, cl. 4.

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ing, the Migration Clause might appear to be a compromise, supporting


state control over immigration until 1808 and federal control thereafter. 132 The Migration Clause is, however, "now commonly understood to
1 33
refer only to the slave trade.
Indeed, the federal government was relatively inactive in the immigration area until it passed the Page Law in 1875,134 which marked the
beginning of an onslaught of anti-Chinese legislation. Congress's only
previous foray into immigration law was the highly controversial Alien
Enemies Act of 1798.135 The Alien Enemies Act, along with its more famous companion, the Sedition Act, 136 was part of a package of legislation
sponsored by the Adams administration targeting aliens and Jeffersonian
Republicans.1 37 The Alien Enemies Act established a compulsory registration requirement for foreign residents and authorized the President to
deport "all such aliens as he shall judge dangerous to the peace and safety
of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government
thereof.1 38 Opponents, led by James Madison, questioned the power of
the federal government to regulate immigration. 1 9 The Alien Enemies
Act was allowed to lapse in 1800, and Congress took no more direct action to restrict immigration until it passed the Page Law.
In contrast, before the passage of the Page Law, the states took a
front seat in regulating immigration.1 40 Until recently, however, state
laws controlling immigration were not viewed by most legal scholars as
"immigration" laws at all, because they applied equally to citizens of other
states and immigrants from other countries. 14 1 A state's interest in excluding certain classes of undesirable residents-such as criminals or
paupers-could be used to regulate any outsider, whether from across
132. Id. art. I, 9, cl. 1 ("The Migration or Importation of such Persons as any of the
States now existing shall think proper to admit, shall not be prohibited by the Congress
prior to the Year one thousand eight hundred and eight....").
133. Cleveland, supra note 9, at 81-82. This consensus is largely based on the
Supreme Court's holding in New York v. Compagnie GeMnrale Transatlantique that "[t]here
has never been any doubt that this clause had exclusive reference to persons of the African
race." 107 U.S. 59, 62 (1883).
134. Act of Mar. 3, 1875 (Page Law), ch. 141, 18 Stat. 477 (repealed 1974).
135. Act of June 25, 1798 (Alien Enemies Act), ch. 58, 1 Stat. 570 (expired 1870).
136. Act of July 14, 1798 (Sedition Act), ch. 74, 1 Stat. 596 (expired 1801).
137. Cleveland, supra note 9, at 88.
138. Alien Enemies Act 1.
139. See Cleveland, supra note 9, at 94-98; see also James Morton Smith, Freedom's
Fetters: The Alien and Sedition Laws and American Civil Liberties 421 (1956) (alleging
that Madison's opposition to the Sedition Law grew out of a view that the government had
become a master as opposed to servant of the people); David Cole, Enemy Aliens, 54 Stan.
L. Rev. 953, 989 (2002) (tracing treatment of foreigners as subversive to Alien and Sedition
Acts, which were inspired by fears that French radicalism might take root in the United
States).
140. For a more detailed analysis of the tension between state and federal power
during this period, see Cleveland, supra note 9, at 81-112.
141. Neuman, Strangers to the Constitution, supra note 9, at 20.

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the world or from the state next door. 1 4 2 Gerald Neuman has demonstrated that these state laws functioned as immigration laws, refuting the
long-held belief that, prior to 1875, the United States essentially had
143
open borders.
Unlike the current federal immigration scheme, these laws did not
focus on regulating numbers of immigrants by nationality; rather, they
44
were intended to protect states from undesirable classes of immigrants.
The laws most commonly enacted by states to control immigration were
laws regulating the migration of paupers and convicts. State regulation of
paupers stemmed from the English poor laws, which required local communities to provide relief to poor people who settled in them. 1 45 The
corollary to this obligation to provide relief was the power to exclude.
For example, a 1794 Massachusetts poor law imposed a penalty on any
person who knowingly brought a pauper or indigent person into any
town in the Commonwealth and left him there and required removal of
the pauper "to any other State, or to any place beyond sea, where he
belongs. 1 46 Other laws required vessel owners to post bond for migrants
arriving by sea if they were likely to become public charges or return
them to their port of embarkation. 14 7 Following the Revolutionary War,
several states instituted prohibitions on the importation of convicts in an
attempt to prevent England from resuming its colonial practice of banishing convicts and sending them to America. 1 48 While restrictions on
paupers and convicts were the most widespread state immigration regulations, there were several other important categories as well. Immigrants
arriving by vessel were subject to state quarantine laws. 149 Some states
prohibited the importation of slaves; and many slave states notoriously
15 0
prohibited the migration of free blacks.
State laws regulating immigration did not go unchallenged. In 1837,
the Supreme Court reviewed a state law burdening the importation of
15 1
paupers and criminals in the famous case of Mayor of New York v. Miln.
In Miln, the Court upheld a New York law that required the master of any
142. Id. at 19-43; cf. Motomura, Curious Evolution, supra note 9, at 1626 (stating that
"[i] mmigration law," if defined as "the federal law governing the admission and expulsion
of aliens," did not exist until 1875).
143. Neuman, Strangers to the Constitution, supra note 9, at 20.
144. Id.
145. Id. at 23.
146. Gerald L. Neuman, The Lost Century of American Immigration Law
(1776-1875), 93 Colum. L. Rev. 1833, 1848-49 (citing Act of Feb. 11, 1794, ch. 8, 10,
13, 15, 1794 Mass. Acts 347).
147. Neuman, Strangers to the Constitution, supra note 9, at 25, 27. For a detailed
analysis of Massachusetts's use of poor laws to discriminate against aliens, see Kunal M.
Parker, State, Citizenship, and Territory: The Legal Construction of Immigrants in
Antebellum Massachusetts, 19 Law & Hist. Rev. 583 (2001).
148. Neuman, Strangers to the Constitution, supra note 9, at 21.
149. Id.
150. Id. at 34-40.
151. 36 U.S. (11 Pet.) 102 (1837).

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ship arriving in New York harbor to report passenger information and


post bonds for passengers who might become poor (and hence a financial burden to the state). 152 Writing for the majority, Justice Barbour upheld the statute as a valid exercise of the state police power; it was a measure "against the moral pestilence of paupers, vagabonds, and possibly
convicts" and the "evil of thousands of foreign emigrants arriving
there. 15 3 Justice Thompson's concurrence relied both on the state police power and the state commerce power. 154 The lone dissenter, Justice
Story, was ahead of his time: He would have held that the federal government alone had exclusive power under the Commerce Clause to regulate
immigration. 15 5 The Court ultimately adopted this stance almost forty
years later in Chy Lung.1 56 In Miln, though, even Justice Story agreed that
states had the right to "prevent the introduction of paupers into the
157
state" under their police power.
The Supreme Court took a step toward making immigration law exclusively federal in 1849. This step was not particularly decisive, however,
and was not followed up with congressional action. In the PassengerCases,
the Supreme Court struck down head taxes imposed by New York and
Massachusetts that were not designed to protect the states against passengers likely to become public charges.15 8 The Court struck down the statutes not because they regulated immigration per se, but because they regulated foreign commerce. 159 States, the Court was careful to note, could
still "guard against the introduction of any thing which may corrupt the
morals, or endanger the health or lives of their citizens." 160 Thus, states
could pass quarantine laws, regulate imports and exports, or exercise
their police powers. 16 1
The PassengerCases could have marked a pivotal moment in immigration law. Although the opinion is fractured, with a bare majority of five
writing a variety of opinions expressing different theories for the scope of
the power, each of the Justices in the majority emphasized the commercial nature of taxing passengers from other lands, and claimed such
"commerce" as a federal right. 1 62 Yet even after the PassengerCases, states
continued to enact legislation that effectively controlled immigration152. Id. at 143.
153. Id. at 141-42.
154. Id. at 143-53.
155. Id. at 155-60.
156. Chy Lung v. Freeman, 92 U.S. 275 (1876).
157. 36 U.S. (11 Pet.) at 156. Justice Story repeated this view in Prigg v. Pennsylvania,
41 U.S. (16 Pet.) 539 (1842), a case challenging Pennsylvania's Fugitive Slave Act. Writing
for the majority, Story concluded that Pennsylvania's police power included the right to
arrest and restrain runaway slaves and "remove them from its borders," just as it included
the right to arrest, restrain, and remove "idlers, vagabonds, and paupers." Id. at 542-43.
158. Smith v. Turner (Passenger Cases), 48 U.S. (7 How.) 283, 283-86 (1849).
159. Id. at 395-97.
160. Id. at 400.
161. Id. at 400-01.
162. Id.

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albeit statutes that were struck down as encroaching on Congress's commerce power-and the federal government failed to occupy the field.
Thus, while the Supreme Court expressed the idea that control over immigration was exclusively federal prior to its holding in Chy Lung, it was
not until the events surrounding the Page Law that the principle became
unequivocal. States, accustomed to passing laws that were de facto immigration laws, continued to pass them throughout the pre-1875 period,
sometimes successfully. The laws attempting to exclude the Chinese from
California and the West during this period were passed by states, not by
the federal government. And when these statutes were persistently struck
down by the California Supreme Court, the California legislature turned
to the strategy of regulating the migration of Chinese women.
B. Laws Affecting Chinese Immigration Before the Page Law
1. Congress's Limited Involvement in Immigration. - Even though the
Supreme Court announced a federal power over immigration in the Passenger Cases, Congress did not restrict immigration until it passed the Page
Law nearly twenty-five years later. Federal involvement in immigration
did begin to grow, however, during these years. Two acts of Congress
were particularly important. The first statute, an 1862 act regulating the
Chinese coolie trade to Cuba,1 63 was not an immigration restriction, but
nevertheless affected immigration to the United States. The second, "An
Act to encourage Immigration," passed in 1864, began to put into place
the system that would become a vast immigration bureaucracy in much
164
later years.
The first law, entitled "An Act to prohibit the 'Coolie Trade' by
American Citizens in American Vessels," has received scant attention
from legal scholars, and those who do mention it usually describe it inac1 65
curately as a law restricting Chinese immigration to the United States.
163. Act of Feb. 19, 1862 (Coolie Trade Prohibition Act), ch. 27, 12 Stat. 340
(repealed 1974).
164. Act of July 4, 1864 (Immigration Act of 1864), ch. 246, 13 Stat. 385.
165. Most scholars overlook the Act altogether. See, e.g., Chen, supra note 11; Cott,
supra note 5; Hing, supra note 9; Peffer, supra note 10; Salyer, supra note 9; Chan, supra
note 10; Hirata, supra note 10; Motomura, Immigration Law, supra note 8; Schuck, supra
note 8. Kim gives the Act brief treatment in his book. Kim, supra note 9, at 49-50. Several
scholars briefly mention the Act, often in a footnote, and misdescribe it as an immigration
law. See Gabriel J. Chin, Regulating Race: Asian Exclusion and the Administrative State,
37 Harv. C.R.-C.L. L. Rev. 1, 10 (2002) (describing Act as "intended to prevent the
importation of 'Coolies'"); Cleveland, supra note 9, at 114 (describing the Act as a
prohibition on "involuntary Asian immigration" and as a manifestation of "[a]nti-Chinese
sentiment" at the "national level"); Fehlings, supra note 9, at 112 (describing the Act as
"prohibiting the importation of indentured labor from China"); Henkin, supra note 9, at
856 n.12 (describing Act as "legislated to ensure that immigration from China and other
'Oriental' countries was voluntary on the part of immigrants"); Charles J. McClain, The
Chinese Struggle for Civil Rights in Nineteenth Century America: The First Phase,
1850-1870, 72 Cal. L. Rev. 529, 537 n.38 (1984) (describing the Act as "prohibiting the
importation of coolie labor"). It is clear from the legislative history of the Act that it was

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On the contrary, the Act was passed to prohibit Americans from dealing
in the slave trade between China and Cuba. Although the trade was illegal under British law, Congress believed that laws of foreign countries
would do little to deter Americans from participating in the trade. "Keep
the fact secret," warned Representative Eliot in presenting the bill before
the House, "let nobody know of it, and there will be found plenty of
American men who will be willing to run all kinds of risks of confiscation
and seizure under foreign laws so long as their own Government takes no
notice of the trade."1 66 Tolerating American involvement in the trade
was unacceptable, for it looked far too reminiscent of the African slave
trade, the legacy of which was still haunting the Union.' 6 7 The statute
rectified this problem, making it illegal for Americans to participate in
the Chinese coolie trade and allowing the United States government to
168
seize any ships involved in the trade.
The Coolie Trade Prohibition Act was passed at the height of the
Civil War, and Congress's concern about the evils of slavery is evident
from its legislative history. In its initial draft, the bill clearly covered only
involuntary servitude, not voluntary indentured servitude, defining the
"coolie trade" as transportation of Chinese "against their will and without
their consent."1 6 9 Once the bill was passed by the House, however, it was
presented to the Senate, and the Senate proposed an amendment that
1 70
erased the distinction between voluntary and involuntary servitude.
The Senate's amendment to the bill struck the language in the bill's first
section defining the "coolie trade" as transportation of Chinese "against
their will and without their consent."1 7 1 All coolie trade should be abolished, the Senate Commerce Committee reasoned, not only involuntary
trade, because it was difficult to distinguish between slavery and indentured servitude. "[P]ersons of this description," explained Senator Ten
Eyck, "being, as is well known, an inferior race," should not be "transported from their homes and sold, under any circumstances.' ' 172 Just as
no "negro should be brought from the coast of Africa to be sold with or
without his consent," neither should a Chinese person. 1 73 The problem
was that consent was impossible to determine, as immigrants could be
aimed not at prohibiting importation of Chinese slaves to the United States but at banning
American involvement in the trade of slaves between China and Cuba. See Cong. Globe,
37th Cong., 2d Sess. 350-52 (1862).
166. Cong. Globe, 37th Cong., 2d Sess. 350.
167. Representative Eliot's presentation to the House of Representatives gave detailed
descriptions of conditions on Chinese slave ships, the means by which Chinese laborers
were duped into migrating, and the prices paid for them upon arrival in Cuba, all in an
effort to demonstrate that the coolie trade, "this most iniquitous slave trade of the
nineteenth century," was a new permutation of the African slave trade. See id. at 350-52.
168. Id. at 350.
169. Id. at 555 (statement of Sen. Ten Eyck).
170. Id.
171. Id.
172. Id.
173. Id. at 556.

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"subjected to the influences which may be brought to bear upon them,"


such as duress and frauds. 174 This concern that a person-especially a
non-white person or a woman, who was perceived as weak or helplesscould not consent to slavery was revisited in later debates concerning
prostitution.

175

The law as it was finally passed outlawed all coolie labor-both slavery and indentured servitude, involuntary and voluntary.1 7 6 Only "free
and voluntary emigration"-emigration that did not involve any indenture-was allowed.' 77 Even though it was not an act restricting immigration, the Coolie Trade Prohibition Act did have legal consequences for
Chinese immigrants. Because the Act held American shipowners liable
for transporting any involuntary Chinese on their vessels, they were required to obtain a consular certificate before leaving Hong Kong, attesting that the emigrants were not under a service of contract. 178 In addition, the Hong Kong consul himself certified that each of the passengers
was a "free and voluntary emigrant[] "79 And section 4 of the Act, articulating the exception for "free and voluntary migration" from China, was
later interpreted as a congressional mandate to encourage Chinese immi80
gration to the United States.'
The requirement that Chinese migrants be "free and voluntary"
might have been understood as banning the "credit-ticket" system that
most Chinese laborers used to travel to the United States. Under the
credit-ticket system, Chinese laborers were not technically indentured servants. Rather than accepting a fixed term of years of indentured servitude, they were at least in theory paying back the cost of their transportation to the United States out of their wages.' 8 1 This practice, however,
could be abused, and the Chinese coming to America might have appeared indistinguishable from voluntary coolies migrating to places such
as Hawai'i or Cuba. Indeed, in California and elsewhere, Chinese immigrants were commonly referred to as "coolies," even though their migra82
tion was voluntary.'
174. Id.
175. See discussion infra Parts II.B.2, III.A.
176. The House approved the amendment on February 14, 1862, and President
Lincoln signed it into law on February 20. Journal of the House of Representatives, 37th
Cong., 2d Sess. 312, 330 (1861).
177. Act of Feb. 19, 1862 (Coolie Trade Prohibition Act), ch. 27, 4, 12 Stat. 340, 341
(repealed 1974).
178. Record at 61, Chy Lung v. Freeman, 92 U.S. 275 (1876) (No. 478).
179. Id. at 61-62. The Certificate expressly states that it is "done in conformity with
the provisions of the act of Congress, entitled 'An act to prohibit the coolie trade by
American citizens in American vessels,' approved February 19th, 1862." Id.

180. See, e.g., Lin Sing v. Washburn, 20 Cal. 534, 546 (1862). There, appellant Lin
Sing challenged an 1862 California Chinese Police Tax on the theory that section 4 of the
federal Act signified "direct authorization and invitation to all subjects of the Chinese
Empire, who see fit of their free will to come to the United States, to do so." Id.
181. See discussion supra Part I.A.
182. See discussion supra Part I.A.

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If there was any question that Chinese migrating voluntarily to California under the credit-ticket system did not flout the Coolie Trade Prohibition Act, Congress made it clear in the Immigration Act of 1864 and
in its ratification of the 1868 Burlingame Treaty that it planned to do
nothing to discourage Chinese immigration. In the Immigration Act of
1864, Congress officially approved the credit-ticket system. 1 83 Section 2
of the law approved contract labor immigration where immigrants entered into wage contracts of up to one year to pay back their transportation costs, and expressly distinguished this practice from "slavery or servitude." 184 So while it was illegal for Americans to participate in the
"Coolie Trade," it was legal, even encouraged, for Chinese to immigrate
to the United States using the credit-ticket system. The 1864 Act also put
into place the basic regulatory apparatus, creating the office of Commissioner of Immigration, and also establishing an office in New York known
as the United States Emigrant Office, run by a Superintendent of
18 5
Immigration.
In addition to passing these two statutes, in 1868 Congress ratified
the Burlingame Treaty, recognizing the "inherent and inalienable right
of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects
..from the one country to the other, for purposes of curiosity, of trade,
or as permanent residents." 18 6 Under the treaty, the Chinese were to
have the same "privileges, immunities, or exemptions in respect to travel
or residence as may ...be enjoyed by the citizens or subjects of the most
favored nation."18 7 The treaty was ratified during a period when the
United States sought to play a greater role in international trade 88 and
to encourage cheap immigrant labor.1 89 Thus, while Congress did nothing in the years between the Passenger Cases and the passage of the Page
Law to directly restrict immigration-and indeed it passed laws encouraging it-Congress did set forth some boundaries of acceptable Chinese
immigration. Immigration under the credit-ticket system was acceptable;
indentured servitude, whether voluntary or involuntary, was not, and the
Chinese, like all people, had an "inherent and inalienable right" to
migrate.
2. California'sAnti-Chinese Statutes. - The anti-Chinese forces in California during the pre-Page Law years of Chinese immigration were in an
183. Act of July 4, 1864 (Immigration Act of 1864), ch. 246, 2, 13 Stat. 385, 386
(repealed 1868).
184. Id. 2.
185. Id. 1, 4.
186. Burlingame Treaty, supra note 4, art. V, 16 Stat. at 740.
187. Id. art. VI, 16 Stat. at 740.
188. Committee Report, supra note 89, at 35-36 (statement of F.A. Bee, esq.,
representing the Chinese Six Companies) (explaining that the purpose of the Burlingame
Treaty was to open up the Far East to direct trade rather than trading through English
merchants).
189. LaFeber, supra note 33, at 150.

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awkward position. According to the Passenger Cases, a state's previously


expansive power to control immigration had been significantly curtailed.' 9 0 Officially, the only power California could use to control Chinese immigration was its "state police power"-its power to exclude or
regulate the migration of "paupers, idiots, or convicts."' 9 1 Yet the federal
government did nothing to control immigration during this period, making its "power" over immigration useless to the anti-Chinese movement.
If anything, as discussed above, the federal government was encouraging
Chinese immigration. California responded with increasingly sophisticated attempts to exercise state power without trammeling on the federal
government's commerce power. This strategy culminated in the 1870s
with the passage of laws targeting Chinese women.
California's first anti-Chinese laws focused on miners, as most Chi19 2
nese men worked in mines in the early years of Chinese immigration.
In 1850, California passed the Foreign Miners' Tax Law, requiring all foreign miners ineligible for U.S. citizenship (i.e., miners who were Chinese) to pay a monthly tax of twenty dollars.19 3 After the miner legislation, the California legislature became more ambitious. In 1855, a law
was passed permanently fixing the rate of the tax at four dollars per
month for all foreigners eligible to become citizens of the United States,
but raising it two dollars per year for all foreigners ineligible to become
citizens. 194 Also in 1855, California passed a Passenger Tax Act, which
imposed a tax of fifty dollars on "every person arriving in this State by sea,
who is incompetent to become a citizen" (most vessels containing passengers ineligible for citizenship were Chinese). 195 This law was struck down
by the California Supreme Court in People v. Downer as an unconstitutional encroachment on the federal commerce power under the standard
19 6
articulated in the Passenger Cases.
In litigating the Downer case, California made no effort to hide that
the purpose of the Passenger Tax Act was to "discourage the immigration" of the Chinese. 19 7 This purpose, the state argued, was well within its
state police power, for this power authorized it to do "whatever is requisite to protect the health, morals, lives, and property of [its] citizens, as by
preventing crime or pauperism, or any other moral or physical evil."' 198
190. Smith v. Turner (PassengerCases), 48 U.S. (7 How.) 282, 458 (1849).
191. Id.
192. For a discussion of the anti-Chinese movement among white miners, see Kim,
supra note 9, at 47-49.
193. Id. at 47. Oregon passed a similar law in 1858 requiring Chinese miners and
merchants to obtain monthly, four-dollar licenses. Hing, supra note 9, at 21.
194. Act of Apr. 30, 1855, ch. 174, 1855 Cal. Stat. 216 (repealed 1856); see Lin Sing v.
Washburn, 20 Cal. 534, 536 (1862).
195. Act of Apr. 28, 1855, ch. 153, 1855 Cal. Stat. 194 (repealed 1955); People v.
Downer, 7 Cal. 169, 170 (1857).
196. 7 Cal. at 170.
197. Id.
198. Id.

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The state compared the immigration of "persons incompetent to become


citizens" with immigration of free blacks. 199 If the state police power gave
Southern states the authority to restrict the migration of free blacks, the
logic went, why could not California restrict the migration of the
Chinese?
But in Downer, the California Supreme Court found that the Passen2 00
ger Cases clearly controlled, and invalidated the fifty-dollar head tax.
This result was unsurprising: Not only did the statute strongly resemble
those at issue in the Passenger Cases, but a fifty-dollar head tax on each
Chinese immigrant would seriously burden vessel owners. Indeed it was
shipping companies, and not the Chinese, who were the defendants in
the case: The owners of the ship Stephen Baldwin owed the state $12,750
in taxes on 250 Chinese passengers.20 1 In addition, anti-Chinese sentiment in California had not yet fully coalesced in 1857. Many whites, including prominent San Francisco merchants and the state commissioner
of immigrants, still supported Chinese immigration at this point and protested the Passenger Tax Act. 20 2 The court's decision can be readjust as
easily to protect their interests as the interests of the Chinese. As animosity toward the Chinese continued to grow, however, the Downer case became a sticking point for the legislature. Once regulation of the Chinese
could not be analogized with regulation of free blacks under the state
police power, California sought a new way of regulating Chinese immigra20 3
tion: taxing Chinese residents, not just Chinese immigrants.
In 1862, California passed a statute clearly aimed at propping up
white labor and taxing the Chinese. Formally entitled, "An act to protect
free white labor against competition with Chinese coolie labor, and discourage the immigration of the Chinese into the State of California," the
law was informally known as the "Chinese Police Tax. ' 204 The law taxed
"each person, male and female, of the Mongolian race" over the age of
eighteen and residing in California a sum of $2.50 per month. 20 5 Exceptions were made for Chinese who were already paying monthly mining or
business taxes or who were involved in producing sugar, rice, coffee, or
20 6
tea-Chinese who were not competing with whites for jobs.
199. Id. at 171.

200. Id. at 172.


201. Id. at 170.
202. See McClain, In Search of Equality, supra note 8, at 18.
203. It appears that the state legislature made one more pass at an exclusion law
before turning to taxes on Chinese residents. In 1858 California passed a statute entitled
"An act to prevent the further immigration of Chinese or Mongolians to this State." Act of
Apr. 26, 1858, ch. 529, 1858 Cal. Stat. 295 (repealed 1955). An attempt was made to
enforce the law, but the California Supreme Court declared it unconstitutional and void in
an unpublished opinion. See Lin Sing v. Washburn, 20 Cal. 534, 538 (1862).
204. Act of Apr. 26, 1862, ch. 339, 1862 Cal. Stat. 462 (repealed 1939); see Lin Sing, 20
Cal. at 536.
205. Act of Apr. 26, 1862 1.
206. Id.

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A Chinese man challenged the law and succeeded in getting it struck


down by the California Supreme Court. 20 7 Justice Cope, writing for the
court, expressed the same set of concerns that would be articulated fourteen years later by the United States Supreme Court in Chy Lung.208 California's hatred for the Chinese, Cope reasoned, could prove so destructive as to have national effects: It could "obstruct and block up the
channels of commerce, laying an embargo upon trade, and defeating the
commercial policy of the nation."20 9 Significantly, the court left untouched the state's power to "exclude obnoxious persons, such as paupers and fugitives from justice. '2 10 The Chinese Police Tax did not fall
under such a power because "it nowhere appears that the Chinese as a
class are of that description; nor does the act pretend to deal with them as
such. ' 211 In other words, competition for labor dealt with commerce, a
federal concern. Protection against "obnoxious persons" was still firmly
within the state's police power.
California responded to this challenge with two immigration laws
targeting Chinese women and one targeting Chinese criminals and coolie
laborers. Taxes on Chinese laborers were clearly not working: The Supreme Court of California continually struck down this type of legislation
as an impermissible encroachment on the federal commerce power. Instead, California attempted to fit the Chinese into the categories that California could regulate through its state police power. The categorization
of Chinese women as sexually immoral and outside the category of
"proper wife" was an important piece of this strategy.
California first targeted Chinese women by passing a law entitled "An
Act to prevent the kidnapping and importation of Mongolian, Chinese
andJapanese females, for criminal or demoralizing Purposes," in 1870.212
In drafting the Anti-Kidnapping Act, the legislature attempted to fit the
regulation of Chinese women into the increasingly narrow state police
power. The preamble read as follows:
Whereas, the business of importing into this State Chinese women for criminal and demoralizing purposes has been carried
on extensively during the past year, to the scandal and injury of
the people of this State, and in defiance of public decency; and
whereas, many of the class referred to are kidnapped in China,
and deported at a tender age, without their consent and against
their will; therefore, in exercise of the police power appertaining to every State of the Union, for the purpose of remedying
the evils above referred to and preventing further wrongs of the
207.
208.
209.
210.
211.
212.

Lin Sing, 20 Cal. at 536.


Chy Lung v. Freeman, 92 U.S. 275 (1876).
Lin Sing, 20 Cal. at 577.
Id. at 578.
Id.
Act of Mar. 18, 1870, ch. 230, 1870 Cal. Stat. 330, 330-31.

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675

same character, The People of the State of California, represented in Senate and Assembly, do enact as follows .... 21The California legislature was ostensibly protecting through its police power at least two classes of people: the general citizenry, who were
subjected to "scandal and injury," and the prostitutes themselves, who
were "kidnapped ... without their consent and against their will."
While the law was couched as an exercise of the police power, however, its text made it clear that it was exercising this power through the
regulation of immigration. Section 1 required any Asian woman seeking
to land in California to obtain a license confirming her voluntary desire
to migrate and that she was a "good person of correct habits and good
character":
It shall not be lawful.., to bring or land from any ship, boat or
vessel into this State, any Mongolian, Chinese, or Japanese females... without first presenting to the Commissioner of Immigration evidence satisfactory to him that such female desires voluntarily to come into this State, and is a good person of correct
habits and good character, and thereupon obtaining from such
Commissioner of Immigration a license or permit particularly
describing such
female and authorizing her importation or
2 14
immigration.
The aspiring immigrant, then, had to demonstrate two conditions to
obtain a license from the Commissioner if she was an Asian female. First,
she had to be immigrating voluntarily, and second, she had to be a "good
person of correct habits and good character." This two-prong test got at
the difficult problem of kidnapping and forced prostitution: It was highly
possible that women of "correct habits and good character" were nevertheless being duped into migrating for purposes of prostitution. One way
to check for this, theoretically, would be to restrict immigration to women who were migrating voluntarily. Anticipating the language of the
federal Page Law five years later, the 1870 law used the categorization of
Chinese women as presumptive prostitutes to achieve its aim. The burden was on the immigrant to convince the Commissioner of Immigration
"to his satisfaction" that she was of good character-otherwise she could
2 15
be turned away.
On the same day, the California legislature also passed a companion
act targeting male coolie labor. This statute, entitled "An Act to prevent
the importation of Chinese criminals and to prevent the establishment of
Coolie slavery," appears to have been an attempt by California to impose
stiffer immigration standards on Chinese laborers than those imposed by
Congress. 2 16 The federal Coolie Trade Prohibition Act required only
that Chinese migrants traveling on American ships convince the Ameri213.
214.
215.
216.

Id.
Id. 1.
Id.
Act of Mar. 18, 1870, ch. 231, 1870 Cal. Stat. 332.

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can consul in Hong Kong that they were doing so voluntarily. 217 The new
California statute required that Chinese laborers must demonstrate to the
California Commissioner of Immigration upon arrival not only that they
were voluntarily immigrants, but also that they were "persons of correct
2 18
habits and good character."
Like the Anti-Kidnapping Act, the Anti-Coolie Act justified itself as
an exercise of the state police power, but it is clear from the language of
the statute that the underlying concern was the competition presented by
Chinese labor. "Criminals and malefactors," the preamble stated, "are
being constantly imported from Chinese seaports" and these criminals'
"depredations upon property entail burdensome expense upon the administration of criminal justice in this State. '219 The importation of these
"criminals" was not only harming the property of citizens, it was also establishing "a species of slavery ...which is degrading to the laborers and
at war with the spirit of the age." 220 The "crime" committed by these
immigrants appears to have been the deflation of wages.
Both the 1870 Anti-Kidnapping Act and the 1870 Anti-Coolie Act
made participation in the importation of Chinese criminals, coolies, or
immoral women a misdemeanor, punishable by a fine of $1,000-$5,000
or a prison term of two to twelve months. 2 21 It appears that the AntiKidnapping Act at least began to be enforced against Chinese women
almost immediately: One newspaper account reports that twenty-nine female passengers were turned away from the Port of San Francisco on
June 14, 1870.222
The 1870 Anti-Kidnapping Act was amended at least twice 223 and
eventually became part of California's general immigration law.2 24 This
law enumerated a list of certain classes of immigrants who had to be reported to the state immigration commissioner by ship captains arriving in
California and required ship captains or vessel owners to post $500 bonds
for the "relief, support, medical care, or any expense whatever, resulting
from the infirmities or vices" of each such passenger. 225 Before 1874, the
classes of passengers requiring such a bond included passengers who
were
lunatic, idiotic, deaf, dumb, blind, crippled or infirm, and ...
not accompanied by relatives who [we]re able and willing to
support him, or [were] likely to become permanently a public
217. Act of Feb. 19, 1862 (Coolie Trade Prohibition Act), ch. 27, 4,12 Stat. 340, 340
(repealed 1974).
218. Act of Mar. 18, 1870, ch. 230, 1.
219. Id.

220. Id.
221. Id. 2; Act of Mar. 18, 1870, ch. 231, 2.
222. See Peffer, supra note 10, at 33 (citing Arrival of the Great Republic, Alta Cal.,
Jun 15, 1870, at 1).
223. Chan, supra note 10, at 98-99.
224. 1873-1874 Acts Amendatory of the Codes of California 70, at 39.
225. Id.

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charge, or ha[d] been a pauper in any other country .

. or

[was], from sickness or disease, existing either at the time of


sailing from the port of departure, or at the time of his arrival in
this State, a public charge .... 226
With the 1874 amendment, this list was broadened to include any
passenger who was a "convicted criminal" or a "lewd or debauched
227
woman."
It is unclear why the 1870 law was amended. Unlike the 1870 law,
the 1874 law was one of general application. In theory, "lewd or debauched" women sailing from any port, domestic or foreign, would be
covered by the law. 228 The amendment may have been an attempt to
disguise the law's racial targeting of Chinese women or to step up regulation of all prostitution, although in practice, it was still Chinese women
who were targeted.2 29 Or it may have been an attempt to hide the unusual nature of the law. By adding the category "lewd or debauched woman" to a laundry list of classes of immigrants commonly regulated by
states, the law attempted to fit the exclusion of "lewd or debauched" women within the state's police power.
In any case, like the "correct habits and good character" language of
the 1870 Act, the language of the amended 1874 law was extremely vague.
The law made no distinction "between the woman whose lewdness consists in private and unlawful indulgence, and the woman who publicly
prostitutes her person for hire, or between the woman debauched by in230
temperance in food or drink, or debauched by the loss of her chastity."
This language provided California immigration officials with extraordinary discretion to exclude Chinese women who did not fit within Western
standards of marriage.
III. CALIFORNIA'S

STRATEGY TESTED:

THE "CASE OF THE TWENTY-Two

CHINESE WOMEN"

California's 1874 immigration law became the subject of a constitutional challenge. At first it appeared that the California legislature's strategy of targeting women was working: When the Chinese challenged the
1874 law in state court, the law was upheld under the state police
power. 231 But the law was struck down by Justice Field, riding circuit, in
226. Id.
227. Id.
228. Id.
229. See In re Ah Fong, 1 F. Cas. 213 (C.C.D. Cal. 1874) (No. 102). Also in 1874,
California amended the 1866 Act for the Suppression of Chinese Houses of IIl Fame to
strike the word "Chinese." Consequently, there appears to have been rising concern either
about prostitution in general or about disguising the racial basis of antiprostitution laws.
See Act of Feb. 7, 1874, ch. 65, 1, 1873 Cal. Stat. 84, 84.
230. In re Ah Fong, 1 F. Cas. at 216.
231. Ex parte Ah Fook, 49 Cal. 402 (1874), rev'd sub nom. Chy Lung v. Freeman, 92
U.S. 275 (1876).

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the federal court decision In re Ah Fong,23 2 and then again by the United
233
States Supreme Court in the landmark decision in Chy Lung v. Freeman,
in which the Court firmly articulated the federal power over immigration
through the Commerce Clause.
A. Detention Under the 1874 Law
In August 1874, the steamer Japan, sailing from Hong Kong, arrived
in the port of San Francisco with five hundred passengers, eighty-nine of
whom were women. 2 34 The immigration commissioner for the State of
California was Rudolph Norwin Piotrowski, a Polish immigrant who first
came to California in 1849.235 When the Japan arrived in San Francisco,
Piotrowski and his agents boarded the ship and examined each of the
women, questioning them through an interpreter. 236 Finding the testimony of twenty-two of the women to be "perfectly not satisfactory," 237 he

concluded that they were lewd, debauched, or abandoned women within


2 38
the meaning of the 1874 statute.
The questions Commissioner Piotrowski asked the women to determine whether they were lewd, debauched, or abandoned all centered on
the validity of their marriages. When asked to summarize his line of questioning, he explained:
The questions which I gave them were generally where they
were married; if they had any relatives or companions when they
came here; or why & by what means they came. All of them
answered that they were married. I asked "Where is your husband?" In California. When did he come? 3 years. How long
have you been married? 4 years ago. How are you going to find
him? We don't know. Have you any papers to show? They all
said they were married; one of them said they were married in
23 9
China; others say in California."
Women with children were permitted to land. 240 Those without children, however, were suspect. Their lack of children, Piotrowski said, was
"one of the principle reasons" he refused to let them land. 24 1 Piotrowski
ordered the ship's captain, John H. Freeman, to detain the twenty-two
24 2
women whom he had deemed "lewd or debauched."
232. 1 F. Cas. at 218.
233. 92 U.S. 275.
234. In re Ah Fong, 1 F. Cas. at 214; Record at 9, Chy Lung (testimony of Capt. John H.
Freeman).
235. Record at 4, Chy Lung (testimony of Rudolph Norwin Piotrowski).
236. Id. at 2 (testimony of Capt. John H. Freeman); id. at 4-5 (testimony of Rudolph
Norwin Piotrowski).
237. Id. at 5 (testimony of Rudolph Norwin Piotrowski).
238. In re Ah Fong, 1 F. Cas. at 214.
239. Record at 6-7, Chy Lung (testimony of Rudolph Norwin Piotrowski).
240. Id at 7.
241. Id.
242. Under the 1874 law, the women would only be able to land if their carrier, the
Pacific Mail Steamship Company, put up a bond of $500 for each of them. Otherwise, they

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The detained women, through their lawyer, Leander Quint, petitioned the state district court for a writ of habeas corpus. The court issued the writ and transferred the case to the Fourth District Court in San
Francisco. 243 The lengthy transcript of the hearing is an important piece
of the story of the shift from state to federal immigration, but it has been
ignored by historians and legal scholars. 2 44 The transcript reads like a
precursor to the congressional hearings on the Page Law, and indeed,
some of the witnesses were repeat players: Dr. Otis Gibson, a missionary,
gave expert testimony at the California hearing and also provided remarkably similar testimony before Congress, as did another missionary,
Ira Condit. 245 Thus, the transcript of the California hearing reveals the
earlier stages of a strategy to target Chinese women, a strategy that was
later expanded on a national scale in Horace Page's presentation to Congress several months later.
The transcript is also important because it shows us how California's
strategy of state enforcement of immigration worked in practice. California immigration officials were primarily concerned with separating Chinese women into two categories: prostitutes and proper wives. California
used two forms of evidence to make its case. First, through cross-examination of the women, its lawyers attempted to elicit testimony that would
call into question the women's marital status.24 6 The women were not
questioned about whether they were prostitutes or, more generally,
whether they were "lewd or debauched." Rather, they were questioned
about their marriages, and if their answers failed to satisfy the court, they
were deemed "lewd or debauched." Second, lawyers for the state brought
in witnesses to identify, through an analysis of the women's clothing and
demeanor, whether the women were wives or prostitutes. 2 4 7 The assumption was that there was a strict dichotomy between wives and prostitutesa dichotomy at variance with the more nuanced reality of Chinese culwould be returned to China. 1873-1874 Acts Amendatory of the Codes of California 70,
at 39.
243. In re Ah Fong, 1 F. Cas. at 214.
244. Although several historians detail the plight of these Chinese women in books or
articles on the history of Chinese immigration, none discuss the transcript of the hearing.
See, e.g., McClain, In Search of Equality, supra note 8, at 54-63; Chan, supra note 10, at
99-105.
245. Record at 17-23, Chy Lung (testimony of Dr. Otis Gibson); id. at 23-24
(testimony of Ira M. Condit).
246. See, e.g., id. at 9-10 (testimony of Lon Ying); id. at 12-13 (testimony of Ah Lin);
id. at 13-14 (testimony of Di He); id. at 14-15 (testimony of Ah Fung); id. at 15-17
(testimony of Ah Oy); id. at 29-30 (testimony of Ah Fook); id. at 30-31 (testimony of Yunn
Hee); id. at 31 (testimony of Sie May).
247. Id. at 17-23 (testimony of Dr. Otis Gibson); id. at 23-24 (testimony of Ira M.
Condit); id. at 24-29 (testimony of Gaylos Woodruff); id. at 34-35 (testimony of Ah Yek);
id. at 40 (testimony of Chung Fing); id. at 42-45 (testimony of Fang Hoy); id. at 45-46
(testimony of Fung Pak); id. at 46-47 (testimony of Chu Pou); id. at 47-48 (testimony of
Ah Lak); id. at 48-49 (testimony of Ah Pay), id. at 49-50 (testimony of Yok).

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ture. 248 Proper wives dressed, looked, and behaved in one way, "lewd"
women in another, and these were the only options.
B. The Women's Testimony
The first strategy was to examine the women (through an interpreter) to determine their marital identity. The examination of Di He
was typical:
Q: Mr. Quint: What is your age?
A: 17.
Q: Are you married or single?
A: Married.
Q: Where is your husband living?
A: In this San Francisco.
Q: How long have you been married?
A: Since last year.
Q: Did you ever live in San Francisco before?
A: Only come this time.
Q: Then you never lived here before?
A: No, sir.
Q: Did you come here to meet your husband?
A: She came to find the husband, but had not seen him ....
249
[S]he has lived in your prison.
Even Long Ying, a woman who claimed to be single, was asked primarily about her pending engagement. If the engagement was of questionable validity, she would be assumed to be a prostitute:
Q: Are you a married woman?
A: She is not.
Q: For what purpose did you return to California?
A: She came here to marry a husband. She is engaged to be
married.

Q: Ask her where this love of hers is that she came here to
marry?
A: She says he is at a place called San Tey.
Q: Did he write to her to come here?
A: She says her mother told her to come here to Cal.
Q: Did she give her any directions where she was to find him?
A: She said that her mother was the one that found the husband
for her. It was not with her own consent. In Chinese style the
250
mother finds the husband.
248. See supra Part I.B.
249. Record at 13, Chy Lung (testimony of Di He); see also id. at 12 (testimony of Ah
Lin); id. at 14-15 (testimony ofAh Fung); id. at 15-17 (testimony ofAh Oy); id. at 29-30
(testimony of Ah Fook); id. at 30-31 (testimony ofYunn Hee); id. at 31-34 (testimony of
Sie May).
250. Id. at 9-10 (testimony of Lon Ying). The answers are in the third person because
an interpreter was answering for the witness.

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Just as any woman who had children had been permitted by Commissioner Piotrowski to land, any woman who had a "husband" claim hereither on the ship, or later in court-was released. 25 1 Conversely, women
who were not claimed by "husbands" could not leave. Many of these
"husbands" may have been tong representatives who came to claim newly
arrived prostitutes. 25 2 Indeed, the proceedings may have been manipulated by the powerful tongs: In several instances, it appears from the transcript that the witness changed his testimony once he was on the witness
2 53
stand, perhaps out of fear of tong retribution.
One detainee, Ah Sin, had a "husband" arrive to claim her, but she
could not identify him. At some point during the hearing, a man arrived
claiming to be her husband. The Court asked for her to be called in.
According to the transcript, she "fail[ed] to recognize the party who
claim[ed] to be her husband." 25 4 The San Francisco Chronicle's description of what was probably the same incident was more descriptive than
the transcript's. According to the Chronicle, Mr. Ryan, the District Attorney, suggested that the man claiming to be a husband be placed in a lineup to see if his alleged wife could pick him out. Quint objected, but the
judge overruled the objection. The Chronicle described the line-up:
A fat, jolly-looking Chinaman was . .. placed in a row with five
others, and the woman he claimed as his wife brought into the
Courtroom and told by the Chinese interpreter to pick her husband out. She scanned the row, the fat Chinaman rolling his
head and endeavoring to catch her eye, and finally he nodded
255
his head at her.
The female detainees were never asked directly whether they were
involved in prostitution. That topic was reserved for the other, male witnesses-Protestant missionaries and Chinese immigrants-who were
asked whether the women were identifiable as prostitutes.
C. The Expert Testimony
Although much contradictory testimony was elicited during the daylong hearing on a variety of topics, three general themes emerged. Most
of the witnesses either supported (or refuted) the view that Chinese women who traveled without their husbands or a male relative chosen by
their husbands were likely to be prostitutes, or supported (or refuted) the
view that a Chinese prostitute was identifiable through her clothing, hair,
and general demeanor. Finally, there was a surprising amount of testimony regarding the Chinese practice of polygamy, given that California's
law did not, on its face target polygamy.
251.
252.
253.
254.
255.
Review).

Id. at 7-8 (testimony of Rudolph Norwin Piotrowski).


See Tong, supra note 10, at 57.
Id.
Record at 50, Chy Lung.
A Cargo of Infamy, S.F. Chron., Aug. 28, 1874, at 3 (on file with the Columbia Law

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Christian missionaries who had spent time in China tended to believe that a Chinese woman would never travel without her husband. Dr.
Otis Gibson, for example, testified that "[i] t is not the custom at all for
the wives to go away without their husbands."2 56 Similarly, Ira M. Condit
stated that in China, "respectable women travel very little. They are occupied at home. They have their o'n [sic] private apartments, & they leave
them but very little. There is not much traveling of women; very little. I
have seen but very little of it."2 57 Some Chinese witnesses testified that
respectable wives would only travel to the United States if they were accompanied by their husbands, or in rare circumstances, by a close friend
258
or relative.
As for identifying a woman as a prostitute based on her dress, the
missionaries once again provided testimony helpful to the state. Dr. Gibson stated that Chinese prostitutes usually wore bright-colored silk clothing underneath their dark outer clothing, "probably yellow or pink or
red, & some figures on it of some kind." 259 The "figured flowered garments," he said, "are not generally worn by wives." 260 Ira Condit testified
that prostitutes generally wear "a gayer style of dress, a dress with yellow
in it, & brighter colors." 26 ' Fang Hoy, a resident of San Francisco's Chinatown, gave more specific testimony about differences in dress:
There is a distinction between whore & Chinese good woman
.... Chinese high class we call mandarin or rich folks. They
dress in silk garments; common people dress in cotton or
woolen. But the whore or prostitute, they have dresses just like
rich folks . . .Wide sleeves, & have what we call a fancy border
262
on the dress.
In its coverage of the hearing, the San Francisco Chronicle dubbed
Fang Hoy's description of prostitutes' apparel "the badge of the scarlet
26 3
sisterhood."
Several other Chinese men, however, testified that they could not tell
the difference between a prostitute and a married woman by the way she
dressed. 264 Fun Pak explained:
256. Record at 18, Chy Lung (testimony of Dr. Otis Gibson).
257. Id. at 24 (testimony of Ira M. Condit).
258. See id. at 45 (testimony of Fung Pak) (respectable wife travels accompanied by
husband, or in rare circumstances, a friend of the husband); id. at 48 (testimony of Ah
Lak) (wives accompanied by girls or servants, husband, brother, or some other relative); id.
at 44 (testimony of Fang Hoy) ("[I]f she is a private woman either with her cousin or her
husband coming to this country; prostitutes come here all in a raft.").
259. Id. at 18 (testimony of Dr. Otis Gibson).
260. Id.
261. Id. at 23 (testimony of Ira M. Condit).
262. Id. at 42 (testimony of Fang Hoy).
263. A Cargo of Infamy, supra note 255. The Chroniclereported the speaker's name as
"Fong Noi."
264. See Record at 45, Chy Lung (testimony of Fung Pak); id. at 46 (testimony of Chu
Pou); id. at 48 (testimony of Ah Lak); id. (testimony of Ah Pay); id. at 49 (testimony of
Yok).

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If a woman is walking the streets you cannot tell whether she is a


married woman; besides, because some of them married woman
walk the streets; but there are a higher class of woman that are
not going out walking around the streets; but some of a poorer
class women walk around the street. Some of the whores or
prostitutes may walk the streets, but you could not tell which is
26 5
the prostitute or the family woman.
Ultimately, much of the testimony had the same "I know it when I
see it" quality as the Supreme Court's obscenity jurisprudence nearly a
century later. 26 6 Ira Condit explained, "There is no definite dress which
distinguishes them as such from the others.... It is more in their general
character & appearance perhaps than anything else." 26 7 Dr. Gibson identified one woman as a prostitute based on her clothing, but then had
trouble explaining why he was so certain that the others were as well:
The flowers on that girl at the end, & her whole get up indicate
without a doubt; the others haven't got that on. It is not discoverable in all of them as I look at them to-day. In half of their
cases there is evidence to my mind that they belong to that class
from the clothing they have on. I don't know only by that, and I
2 68
know by the fact of their comming [sic] as they do here.
Thus, the hearing was devoted primarily to ferreting out women who
were "lewd or debauched" from those who were married, even though
the definition of "lewd or debauched," on its face, had nothing to do with
marriage. This imposition of a strict marriage-prostitution dichotomy was
typical of the times. 2 69 It also foreshadowed the arguments presented by
Horace Page to Congress several months later in support of the Page
Law.
Also foreshadowing the Page Law was the emphasis on the Chinese
practice of polygamy in the California hearings. In theory, polygamy had
nothing to do with the hearings. The issue to be decided was whether the
women had been improperly detained-whether or not they were, in
fact, prostitutes. No one suggested at the hearing that a woman who was
a second wife should be sent back to China because she was "lewd or
debauched." But an underlying theme of the hearing was that the Chinese had very odd marriage customs, and that Chinese women in general
were untrustworthy and sexually aberrant. Chinese women in polygamous marriages seemed more akin to prostitutes than to proper wives.
Accordingly, there were a significant number of witnesses who testified
about the practice of polygamy, even if it was technically irrelevant.
265. Id. at 47 (testimony of Chu Pou).
266. See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
267. Record at 23, Chy Lung (testimony of Ira M. Condit).
268. Id. at 18 (testimony of Dr. Otis Gibson).
269. See discussion supra Part I.B; see also generally Dubler, In the Shadow, supra
note 5 (describing the historical reach of marriage laws to women living outside of
marriage).

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At the hearings, Dr. Gibson distinguished between proper, monogamous wives, and wives in polygamous marriages. When questioned about
the number of Chinese in San Francisco who were married, Dr. Gibson
volunteered that even those women who were married were not really
proper wives:
Q: What proportion of the Chinese women coming to this country are married? Could you say from you [sic] own knowledge of
the Chinese here?
A: I don't suppose there are in this city to-day perhaps 100 married women ....
There may be that I don't know of, but I don't
I think
think think [sic] there are 20 first wives in this city ....

not, unless you call it married where they have second wives.
They, some of them, take this class of women for a second wife,
& leave them with the270family when they leave here, & somebody
else take' [sic] them.
Indeed, one witness had accompanied his second wife to San Francisco aboard the Japan. While his wife's status as a second wife was legally
irrelevant, he was nevertheless questioned at length about the details of
his marriage customs:
Q: Are you a married or a single man?
A: He has a wife.
Q: Where is your wife living?
A: He says, my wife is living at home in China, & the other wife,
or the other concubine or second wife is here.
Q: Then you have two wifes [sic], one living here and the other
in China, have you?
A: Yes, sir; the
older or principal wife is in China, & this secured
27 1
wife is here.
This series of questions was an early example of what would become
a common theme in courts and legislatures in the decades to come: the
scandalous practice of polygamy as practiced by the Chinese. Although it
does not appear that second wives were excluded through enforcement
of these early California statutes, once immigration law became federal2 72
ized, polygamy became grounds for exclusion.
D. The Court's Ruling, and Ah Fook's Appeal
Although the California law was a blunt instrument against Chinese
immigration, the state court accepted that the exclusion of "lewd or debauched" women fit within the police power. On the next day, August
270. Record at 21, Chy Lung (testimony of Dr. Otis Gibson). This testimony is
remarkably similar to the statement he presented in support of the Page Law. See infra
text accompanying note 326.
271. Record at 37, Chy Lung (testimony of Chung Fing).
272. See Act of Mar. 3, 1891 (Immigration Act of 1891), ch. 551, 1, 26 Stat. 1084,
1084.

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29, the court ruled against the women without written opinion and or2 73
dered them back to the custody of the steamship master.
The court's ruling may have been partially impacted by the behavior
of the women in the courtroom and the press's coverage of the hearing.
One woman, Ah Fook, lost her temper when she was repeatedly questioned under cross-examination, and this led to the clearing of the courtroom by the judge. Ah Fook claimed to have lived in California previously, returned to China where she married her husband, and was now
returning to California to be with him. After persistent questioning
about the exact location of her previous San Francisco home and the
identity of other occupants there, she appears to have had an outburst:
She says now you are foolish; she says she has been here several
months, and she could not remember who kept the baker store;
she said if you were doing right you would not ask her so many
questions; that she went home with a good intention, and she
brought her sister here with a good intention.
(Here the proceedings of the court were interrupted by the
274
noisy demonstrations of the Chinese.)
In the Alta California's coverage of the incident, Ah Fook was described as "very obstinate and saucy. ' 275 The Chronicle, which referred to
her as "Miss Ah Poke," said that she "became excited under a rigid cross276
examination."
Both newspapers documented the "noisy demonstrations of the Chinese" mentioned in the transcript. According to the Alta California, "[a] t
this point one of the women jumped to her feet and let out a most unearthly yell. Immediately the whole lot were jabbering and screaming at
the top of their voices, and it was found impossible to quiet them until
they were hustled from the Court-room." 2 77 The Chronicle also mentioned the woman who gave an "awful screech" and reported that "the
rest of them ...put their handkerchiefs to their faces and bellowed at the
top of their lungs." 2 7 8 The Chinese interpreter told the Chronicle reporter that the women were "expostulating against being kept in prison,
saying that they had not killed anybody, stolen anything, or set fire to
anything."2 79 The judge "stuffed his fingers in his ears and retired to his
chambers, and Court was suspended fifteen minutes before order could
280
be restored."
The same day that the judge ruled against them, the women applied
for another habeas writ, with the "obstinate and saucy" Ah Fook as lead
plaintiff, this time alleging that they were about to be deported to China
273.
274.
275.
276.
277.
278.
279.
280.

McClain, In Search of Equality, supra note 8, at 58.


Record at 30, Chy Lung (testimony of Ah Fook).
See Chan, supra note 10, at 100 (quoting Alta Cal., Aug. 28, 1874).
A Cargo of Infamy, supra note 255.
See Chan, supra note 10, at 100 (quoting Alta Cal., Aug. 28, 1874).
A Cargo of Infamy, supra note 255.
Id.
Id.

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and asking for a state supreme court ruling. A week later, the Supreme
Court of California rendered its decision in Ex parte Ah Fook.28 1 In this
decision, it appeared that the strategy of targeting Chinese women was
working: The court found the statute well within the state's police power.
Ah Fook's first challenge to the law was that it violated a federal
treaty. Article VI of the Burlingame Treaty between the United States
and China provided that "Chinese subjects visiting or residing in the
United States, shall enjoy the same privileges, immunities, and exemptions in respect to travel or residence, as there may be enjoyed by the
citizens or subjects of the most favored nation." 28 2 The court dismissed
this argument. Because the law was one of general application-applying, at least in theory, to all passengers arriving by ship-and did not
28 3
single out the Chinese for discrimination, it did not violate the treaty.
Nor, found the court, did the law violate the Due Process Clause of
the Fourteenth Amendment. It was "obvious," the court opined, that a
statute intended to "carry[ ] into operation [the] quarantine or health
laws" of the state "must be prompt and summary. ' 28 4 The power to exclude lewd women, the court explained, is akin to the power "which isolates those ill of contagious diseases, or those who have been in contact
with such." 285 The court did not discuss whether the detention might
violate the Equal Protection Clause of the Fourteenth Amendment.
In finding that the statute did not violate the Burlingame Treaty or
the Due Process Clause, the court emphasized the breadth of the state's
police power. If the law were found impermissible under the treaty, the
court stated, the state would be "prohibited from excluding criminals or
paupers-a power recognized by all the writers as existing in every independent State." 28 6 The court described the power as one of self-protection: The state employed the power, "not to punish for offenses committed without our borders" but instead "to prevent the entrance of
elements dangerous to the health and moral well-being of the community." 28 7 This holding was in stark contrast with the court's previous decisions in Ling Sing v. Washburn288 and People v. Downer,289 in which the
California Supreme Court struck down the Chinese Police Tax and the
1855 Act taxing vessels arriving from China, respectively. 2 90 It appeared
that, by targeting women and classifying them as outside the institution of
monogamous marriage, California had found a way to exclude a significant number of Chinese immigrants.
281.
282.
283.
284.
285.
286.
287.
288.
289.
290.

49 Cal. 402 (1874), rev'd sub nom. Chy Lung v. Freeman, 92 U.S. 275 (1876).
Burlingame Treaty, supra note 4, art. VI, 16 Stat. at 740.
49 Cal. at 405.
Id. at 406 (Cooley, J., concurring).
Id. at 406-07
Id. at 405.
Id. at 407.
20 Cal. 534 (1862).
7 Cal. 169 (1857).
See supra notes 194-211 and accompanying text.

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E. The Federal Court Appeal: Ah Fong


After losing their case in front of the California Supreme Court, the
Chinese women tried again. Ah Fong, one of the detained women, filed
another writ of habeas corpus, but this time in the California federal
court. 29 ' Her case was heard by Circuit CourtJudge Lorenzo Sawyer, District Court Judge Ogden Hoffman, and Supreme Court Justice Stephen
29 2
Field, riding circuit in San Francisco.
Justice Field's decision departed dramatically from that of the state
supreme court. According to Field, a state's power to exclude foreigners
was much more limited than previously supposed; it included only its
"right to self-defense," which was not the broad right to exclude enunciated in cases such as Miln,2 9 3 but a very narrow one. 294 Further, Field
held that the Act contravened the principles of equal protection articulated in the 1870 Civil Rights Act, an issue not even considered by the
295
state supreme court.
In his first holding, determining that the statute usurped the federal
government's power over immigration, Justice Field was careful to note
that a state's power of self-protection was not threatened by federal control. A state's police power, according to Justice Field, could justify "all
sorts of restrictions and burdens" where these were "not in conflict with
established principles, or any constitutional prohibition. ''296 The problem with the California statute was that it was impermissibly vague, extending far beyond the permissible bounds of the police power. It punished not only paupers but also those who used to be paupers but had
become solvent. The "condemned patriot, escaping from his prison and
fleeing to our shores," was treated the same as "the common felon who is
a fugitive from justice." 2 9 7 Most relevant to the case at hand, the law
made no distinction between public prostitutes and immoral women who
keep their vices private:
291. In re Ah Fong, 1 F. Cas. 213 (C.C.D. Cal. 1874) (No. 102). Ah Fong appears to
have been the sister, or at least so she claimed, of Ah Fook, the named plaintiff in the state
case. Record at 29, Chy Lung v. Freeman, 92 U.S. 275 (1876) (No. 478) (testimony of Ah
Fook).
292. McClain, In Search of Equality, supra note 8, at 62-63.
293. Mayor of N.Y. v. Miln, 36 U.S. (11 Pet.) 102, 139 (1837) ("[lit is not only the
right, but the bounden and solemn duty of a state, to advance the safety, happiness and
prosperity of its people, and to provide for its general welfare, by any and every act of
legislation, which it may deem to be conducive to these ends.").
294. In re Ah Fong, 1 F. Cas. at 216.
295. Id. at 218. Field also held that the statute contravened the Burlingame Treaty,
but this holding was dependent on the first holding that states had no power to regulate
conduct beyond a narrow right of self-defense. If a state could not exercise broad powers
vis-a-vis immigrants from other countries, then it could not exercise these powers to target
the Chinese. Id. at 217-18.
296. Id. at 216.
297. Id. at 215-16.

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Nor is there any difference made between the woman whose


lewdness consists in private and unlawful indulgence, and the
woman who publicly prostitutes her person for hire, or between
the woman debauched by intemperance
in food or drink, or de298
bauched by the loss of her chastity.
The cure, according to Field, for ills such as prostitution was not an
overbroad statute excluding anyone likely to engage in prostitution, but
strong state laws punishing those who actually did: "[I]f lewd women, or
lewd men . . .land on our shores, the remedy against any subsequent
lewd conduct on their part must be found in good laws or good munici'299
pal regulations and a vigorous police.
Although Field presented his opinion as a restatement of long-established principles of the state police power, it actually created substantial
limitations on powers previously exercised by states. Field's opinion in Ah
Fong circumscribed state power by distinguishing "proper" uses of police
power from corrupt uses, such as the prohibition of free blacks. "[M] uch
which was formerly said upon the power of the state," according to Field,
"grew out of the necessity which the southern states, in which the institution of slavery existed, felt of excluding free negroes from their limits." 30 0
But now, in the wake of the Civil War, "no such [argument] would be
asserted, or if asserted, allowed, in any federal court."'30 1 The war had
changed everything, and states could no longer create their own policies
of inclusion and exclusion. A state's power to exclude immigrants, Field
concluded, was now a very limited power of self-defense. A state can take
"precautionary measures against the increase of crime or pauperism, or
the spread of infectious diseases from persons coming from other countries." 30 2 The exclusion of lewd or debauched women, based on their
status as such, far outstripped this narrow power, especially when the
problem could be more easily handled by a "vigorous police. 30 3
Having determined that the California statute exceeded the state police power, Field could have ended the inquiry. Instead, he went further,
holding that the California Act violated the Civil Rights Act of 1870,
which prohibited the imposition of a tax or charge on "any person immigrating . ..from a foreign country which is not equally imposed and
enforced upon every person immigrating . . . from any other foreign

298.
299.
300.
301.

Id.
Id.
Id.
Id.

at
at
at
at

216.
217.
216.
217.

302. Id. at 216.


303. Id. at 217. Despite increasing federal control over immigration, states continued
to assert their right to exclude paupers and criminals. It was not until 1941 that the
Supreme Court declared that California's statute prohibiting the importation of indigent
persons posed an unconstitutional burden on interstate commerce. Edwards v. California,
314 U.S. 160, 177 (1941).

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country."30 4 The California statute did not impose a tax on the Chinese
women, but it did, Field explained, impose a "charge," defined as "any
onerous condition." 30 5 Making the right of an immigrant to land dependent on the willingness of a ship captain to pay a bond was "as onerous as
30 6
any charge which can well be imposed."
The Act's imposition of this "charge" violated the principle of equal
protection neither because it was based on race (the statute did not single
out Chinese immigrants for special treatment, although they were certainly its targets), nor because it was based on gender (lewd or debauched
men were not covered by the statute) but because it applied only to immigrants who arrived by vessel, leaving those who travel "by land from the
British possessions or Mexico, or over the plains by railway, exempt from
30 7
any charge.
Field expressed his own ambivalence toward the Chinese and reluctance to articulate a race-based theory of equal protection in a series of
contradictory statements. On one hand, Field was disturbed that the California law was enforced in a racist manner against Chinese women (many
of whom were kidnapped or duped into prostitution) but not against
other women who chose to enter the profession. Explained Field, "I have
little respect for that discriminating virtue which is shocked when a frail
child of China is landed on our shores, and yet allows the bedizened and
painted harlot of other countries to parade our streets and open her hells
in broad day, without molestation and without censure." 30 8 Yet in the
same paragraph, Field expresses sympathy with the anti-Chinese forces in
California, tempered by concern that they be treated evenhandedly:
I am aware of the very general feeling prevailing in this state
against the Chinese, and in opposition to the extension of any
encouragement to their immigration hither. It is felt that the
dissimilarity in physical characteristics, in language, in manners,
religion and habits, will always prevent any possible assimilation
of them with our people. Admitting that there is ground for this
feeling, it does not justify any legislation for their exclusion,
which might not be adopted against the inhabitants of the most
30 9
favored nations of the Caucasian race, and of Christian faith.
This animosity was consonant with Field's general beliefs concerning
the Chinese. In 1882, he wrote to a friend in favor of the Exclusion Act,
explaining that the "manners, habits, mode of living, and everything connected with the Chinese prevent the possibility of their ever assimilating
304. Act of May 31, 1870 (Civil Rights Act of 1870), ch. 114, 16, 16 Stat. 140, 144
(current version at 42 U.S.C. 1971 (2000)).
305. In re Ah Fong, 1 F. Cas. at 218.
306. Id.
307. Id. The Court did not hold that race-based claims not involving blacks fell within
equal protection until Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886). And there was no
equal protection theory of gender until Reed v. Reed, 404 U.S. 71, 76-77 (1971).
308. In re Ah Fong, I F. Cas. at 217.
309. Id.

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with our people. They are a different race, and, even if they could assimilate, assimilation would not be desirable."3 1 0 Field later penned the decision in Chae Chan Ping v. United States, upholding the constitutionality of
the Chinese Exclusion Act in 1889.311
The solution for Field in Ah Fong was to let Congress deal with the
problem. The Equal Protection Clause applied only to the states; 3 12 what
the states could not do without violating the 1870 Act, Congress could.
Thus, wrote Field, if the further immigration of the Chinese "is to be
stopped, recourse must be had to the federal government, where the
whole power over this subject lies."3 1 3 In March of 1875, only months
after Field's decision, Congress complied by passing the Page Law.
IV.

THE FEDERAL EXCLUSION OF CHINESE WOMEN:

THE PAGE LAW

The Page Law, like the California statutes after which it was modeled,
harnessed deep cultural anxieties about Chinese marriage practices in
order to regulate immigration when direct restrictions on immigration
were otherwise impermissible. Like California, Congress drafted a law
based on the presumption that the sexual practices of Chinese women
were aberrant. This had the effect of broadly restricting Chinese female
immigration when the Burlingame Treaty prevented outright racial
exclusion.
The author of the Page Law was Horace F. Page, a congressman from
California. A Republican, Page exemplified his party's stance toward the
Chinese in the mid-1870s. Immediately after the Civil War, the Republican Party was unquestionably dominant. But the depression in the 1870s
resulted in a strong Democratic showing in 1874, with the Democrats winning the House of Representatives by a decisive majority and narrowing
the Republican's majority in the Senate.3 1 4 A desire to maintain or
regain supremacy may explain the Republicans' willingness to take such a
strong anti-Chinese stance. This stance was not without controversy, however: In 1876, when the Republican Party included in its national platform a plank opposing the "immigration and importation of
Mongolians," one delegate from Massachusetts noted that this was the
first time the party had included "a discrimination of race" in its
platform. 315
Regardless of whether his party truly believed in Chinese exclusion,
Page himself made a career out of drafting and advocating anti-Chinese
310. Charles W. McCurdy, Stephen J. Field and the American Judicial Tradition, in
The Fields and the Law 5, 17 (Philip J. Bergan et al. eds., 1986).
311. 130 U.S. 581 (1889).
312. The Supreme Court did not apply the Equal Protection Clause to the federal
government until the 1950s in Bolling v. Sharpe, 347 U.S. 497, 500 (1954).
313. In re Ah Fong, 1 F. Cas. at 217.
314. See Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877,
at 523 (1988) (discussing "reversal of partisan alignments" in the 1874 election).
315. Id. at 567.

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legislation. His success in getting the Page Law passed occurred after he
had already sponsored several other failed attempts to exclude the Chinese: From 1873 until the passage of the Page Law, Page sponsored four
anti-Chinese bills and three House resolutions, all aimed at restricting
immigration of Chinese laborers and renegotiating the Burlingame
Treaty so that restrictive laws would be permissible. 31 6 The House Committee on Foreign Affairs rejected Page's exclusion proposals and refused
to consider renegotiating the treaty. 317 The Page Law, by excluding Chinese women to protect the moral integrity of the Western states, enabled
Page to at least partially achieve his goals in a way that circumvented the
express terms of the treaty. Page later sponsored the Chinese Exclusion
Act of 1882, which dramatically curtailed the immigration of Chinese
men by prohibiting the entry of Chinese laborers into the United
31 8
States.
In December of 1874, President Grant sent his annual message to
Congress. 3 19 In his message, Grant encouraged the "protection" of Chinese immigrants through the prohibition of coolie labor and prostitution. According to Grant, coolies and prostitutes were different permutations of the same phenomenon-involuntary workers forced to emigrate:
[T]he great proportion of the Chinese immigrants who come to
our shores do not come voluntarily, to make their homes with us
and their labor productive of general prosperity, but come
under contracts with head-men, who own them almost absolutely. In a worse form does this apply to Chinese women.
Hardly a perceptible percentage of them perform any honorable labor, but they are brought for shameful purposes, to the
disgrace of the communities where settled and to the great demoralization of the youth of these localities. If this evil practice
can be legislated against, it will be my pleasure as well as duty to
320
enforce any regulation to secure so desirable an end.
Page responded to Grant's request with the bill that became the
Page Law. Instead of attempting to exclude all Chinese immigrants, Page
316. For a detailed discussion of Page's anti-Chinese activities in Congress, see Peffer,
supra note 10, at 33-36.
317. See id. at 34-35. Congress's main consideration in refusing to renegotiate the
treaty appears to have been a desire for free trade with China. In 1870, Senator Cornelius
Cole of California was asked by a San Francisco Chronicle reporter why the United States
should abide by the treaty. He responded,
And lose the trade of China? San Francisco commerce is languishing, you tell
me, and yet you suggest a means to lop off our growing commerce with the very
Power upon which we rely for wealth. The trade of China has been sought for,
prayed for, fought for, for years and years .... I would not consent to any such
proceeding.
Cole Interview, supra note 92.
318. Act of May 6, 1882 (Chinese Exclusion Act), ch. 126, 1, 22 Stat. 58 (repealed
1943).
319. 3 Cong. Rec. 3 (1874).
320. Id. at 3-4.

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took Grant's suggestion to target two groups in particular, just as California had in 1870: coolies and women.
A. Legislative History
Congressional testimony on the Page Law illuminates the cultural
anxieties that contributed to its passage. When he presented the law on
February 10, 1875, Page gave a lengthy speech, interspersed with readings
of various statements by "experts" on the Chinese, predominantly Protestant missionaries. The theme of Page's speech was that Chinese women
coming to the United States were almost always prostitutes, and even
those who were not were almost certainly not wives in the monogamous,
Christian sense. Chinese prostitutes-like "coolies"-were no more than
3 21
slaves, and as such, antithetical to the American system of free labor.
Dr. Otis Gibson, the Methodist Episcopal Clergyman who had testified in the hearings over Ah Fook and her companions, 322 also gave a
statement to Congress, basing his opinions on his work both in China and
with the Chinese population in San Francisco. According to Dr. Gibson,
there were approximately 2,500 Chinese women and girls living in San
Francisco, and "a very large proportion of these females are enslaved
prostitutes." 323 Another missionary estimated that at "least nine-tenths of
all female Chinese now in California are of that class of persons, brought
here for that purpose, and treated as slaves." 324 While many Chinese women in San Francisco were prostitutes, the proportion was nowhere near
3 25
ninety percent.
Just as the California court hearing over the detention of Ah Fook
and her companions turned to the subject of polygamy in a case that
ostensibly concerned prostitution, so did the congressional hearings on
the Page Law. Once again, Dr. Gibson testified that Chinese women,
even if not prostitutes, were not wives in the legitimate, monogamous
sense:
[O]f all the Chinese females in San Francisco there are not
more than three hundred who are really claimed as wives by the
Chinese themselves, and nearly all of these are only secondary
wives or concubines, in accordance with the custom of China.
Of really first wives I do not think there are fifty in all the Chi3 26
nese population of this city.
Polygamy provided further evidence that the Chinese were incapable
of understanding the freedom of contract so important to American de321.
322.
323.
324.
325.
326.

See 3 Cong. Rec. appx. at 40-45 (1875).


See discussion supra Part III.C.
3 Cong. Rec. appx. at 41 (statement of Rev. Otis Gibson).
Id. (statement of Ira M. Condit).
See supra Part I.B.
3 Cong. Rec. appx. at 41.

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mocracy.3 27 Polygamy, prostitution, and coolie labor practices were all


marks of a "servile population." In a statement signed by 17,000 white
citizens of California that Page read into the record, the immigration of
Chinese laborers was characterized as a new wave of slave labor:
[O]ur recent history shows with what devotion to the great principles of freedom our citizens placed their lives at the command
of the Government and poured out their blood and treasure to
terminate the blighting influence of slavery in our midst. Yet an
must eventuate
equally and, if possible, a more insidious danger328
by the great increase of this servile population.
According to the rhetoric introduced by Page, a country that had
worked hard to eradicate slavery from its midst was being inundated with
a slave-like people, the Chinese.
In advocating exclusion, Page emphasized the helplessness of his
state, California, not only against the perceived servility of the Chinese
but also against the tide of immorality and disease believed to accompany
Chinese women. He included a letter from California's Commissioner of
Immigration complaining that since the decision in Ah Fong, he could no
longer protect California from "a traffic which is demoralizing to the people of this State."3 29 Chinese women, according to the Commissioner,
created both physical and moral decay in the white population of San
Francisco. "It is well known," his letter explained, "that every city and
to spread
town in this State has Chinese brothels in such numbers as
33 0
disease to the young and inexperienced of our population."
Chinese women, then, were a pestilence that had to be removed.
Either they were prostitutes, or, almost as bad, they were second wives or
concubines establishing a system of polygamy contrary to the American
model of monogamous marriage. As Page put it in his grandiloquent
closing statement, his bill was intended to "place a dividing line between
vice and virtue" and "send the brazen harlot who openly flaunts her wickedness in the faces of our wives and daughters back to her native coun327. See Gordon, supra note 96, at 173 (discussing late nineteenth-century criticisms
of Mormon polygamy based on consent).
328. 3 Cong. Rec. appx. at 44. This rhetoric was echoed two years later by the San
Francisco Call. "The Chinese females who immigrate into this state are, almost without
exception, of the vilest and most degraded class of abandoned women. These women exist
here in a state of servitude, beside which African slavery was a beneficent captivity." Peffer,
supra note 10, at 79.
329. 3 Cong. Rec. appx. at 42.
330. Id. By 1875, the year that Congress passed the Page Law, the American Medical
Association had officially identified Chinese prostitutes as a source of contamination and
even sponsored a study to examine their effect on the "nation's bloodstream." Salyer,
supra note 9, at 11-12. And in 1876, Dr. Hugh H. Toland testified before the San
Francisco legislature that Chinese prostitutes were the cause of ninety percent of the
syphilis cases in San Francisco, and that his white patients thought that "diseases
contracted from Chinawomen [we]re harder to cure than those contracted elsewhere."
Chen, supra note 11, at 86.

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try."''3 1 White Americans, "stout-hearted people" who, "with their wives


and children" immigrated to California and "staked everything upon the
venture" now were threatened by a "deadly blight."3 32 Only exclusion of
the carriers of disease could protect California's future.
Page's speech also expressed a fear that China was sending its most
debased citizens to the United States-coolie laborers and prostitutes,
not respectable merchants-and that America would be weakened as a
result. China, Page argued, "insist[ed] on sending here none but the
lowest and most depraved of her subjects;" America was becoming "her
cess-pool."53 3 By sending slave-like people to America, Page argued,
China had breached its obligations under the Burlingame Treaty, which
provided for reciprocal voluntary emigration between the two countries:
Has [China] acted in good faith? It may be urged that her subjects come here under a voluntary contract; that her women voluntarily sell themselves into slavery. Can one person induce another to voluntarily do an unlawful act without bringing both
within the penalties of the violated law? If this be true, which I
very much doubt, then they are doubly guilty. For they add to
the crime of prostitution that of voluntary slavery, both of which
the Chinese Empire permits its subjects to commit in violation
of the laws of our country and in open definance [sic] of the
3 34
treaty.
The Page Law passed the House and the Senate in the wake of another major piece of anti-Chinese legislation: Congress's reaffirmation of
Asian immigrants' ineligibility for citizenship. 335 Thus, in the space of a
month, Congress both reaffirmed its commitment to precluding new Chinese immigrants from becoming naturalized citizens and created a restrictive immigration law that would prevent the birth of American-born
citizens of Chinese ancestry.

331. 3 Cong. Rec. appx. at 44.


332. Id.
333. Id.
334. Id. at 43.
335. See Act of Feb. 18, 1875, ch. 80, 300B, 18 Stat. 316, 318. Congress extended
naturalization rights to Africans in 1870, but did not include Asians. Act of July 14, 1870
(Naturalization Act of 1870), ch. 254, 7, 16 Stat. 254, 256 (repealed 1952). In 1874, the
language "free white persons" was accidentally omitted from the Revised Statutes, so
Congress rectified this omission through the passage of the February 18, 1875 law. Chin,
supra note 165, at 11; see also generallyJohn Hayakawa Torok, Reconstruction and Racial
Nativism: Chinese Immigrants and the Debates on the Thirteenth, Fourteenth, and
Fifteenth Amendments and Civil Rights Laws, 3 Asian L.J. 55 (1996) (arguing that the
perception that Chinese immigrants were "unassimilable" contributed to the enactment of
exclusionary federal laws, and to their being upheld by the judiciary). For a history of
Chinese efforts to secure citizenship, see CharlesJ. McClain, Tortuous Path, Elusive Goal:
The Asian Quest for American Citizenship, 2 Asian L.J. 33, 34-41 (1995).

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B. The Statute
Horace Page carefully crafted the Page Law to exclude Chinese immigrants without violating the Burlingame Treaty. By officially prohibiting the importation of only coolies and prostitutes, the law did not restrict the "free migration and emigration" of Chinese citizens that was
protected by the Treaty. 33 6 The law's title was strategically worded to disguise its drastic nature: Entitled "An Act Supplementary to the Acts in
Relation to Immigration," the Page Law was styled as an aid to already
existing immigration policies and treaty relations, even though none of
these existing policies was as restrictive. 3 37 Indeed, in order to pass the
Chinese Exclusion Act, excluding all Chinese laborers, in 1882, the
United States did have to renegotiate the Burlingame Treaty. 338 The new
treaty allowed the United States to "regulate, limit, or suspend" but not
"absolutely prohibit" the immigration of Chinese laborers. 3 39 Regulation
was arguably permissible when laborers would threaten the country's "in340
terests" or "good order."
The Page Law was divided into five sections. These sections worked
together to create a system that criminalized the importation of prostitutes and coolies, 34 1 required Asian women to obtain certificates of immigration demonstrating that they were not emigrating for "lewd or immoral purposes,"3 4 2 and banned certain classes-felons and prostitutesfrom immigrating to the United States. 343 A brief explanation of each
section follows.
Section 1 was the only section that explicitly targeted Chinese women. This section made it the duty of the consul-general or consul of the
United States residing at ports of embarkation in "China, Japan, or any
Oriental country" to "ascertain whether such immigrant has entered into
a contract or agreement for a term of service ... for lewd and immoral
purposes" and to refuse to grant any such immigrants the required immigration certificate. 344 In other words, American consuls in foreign
ports3 45 had an obligation to screen Chinese and Japanese women before
336. Compare Act of Mar. 3, 1875 (Page Law), ch. 141, 18 Stat. 477 (repealed 1974),
with Burlingame Treaty, supra note 4, art. V, 16 Stat. at 740.
337. See Peffer, supra note 10, at 37 (noting that the Page Law's inclusion of penalties
for import of Chinese prostitutes made it "the most severe anti-Chinese legislation" to
date).
338. Treaty Between the United States and China, Concerning Immigration, Nov. 17,
1880, U.S.-China, 22 Stat. 826 [hereinafter Renegotiated Burlingame Treaty].
339. Id. art. I.
340. Id.
341. Page Law 2-3.
342. Id. 1.
343. Id. 5.
344. Id. 1.
345. In practice, this provision meant that the American consul in Hong Kong had to
routinely interrogate women, as most Chinese emigrating to the United States were from
Canton and left China through Hong Kong. See Committee Report, supra note 89, at 21

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they even left their home countries, and refuse to grant them an immigration certificate if they suspected them of prostitution, a hurdle not
346
imposed on immigrants from other ports, such as those in Europe.
This section was carefully crafted to appear as an elaboration of the earlier Coolie Trade Prohibition Act,3 4 7 and therefore consonant with the
Burlingame Treaty; the certificates were to be given to Chinese women
"in determining whether the [ir] immigration... is free and voluntary, as
provided by [the Coolie Trade Prohibition Act] .-348
Sections 2 and 4 purported to crack down on the importation of
coolie laborers, imposing heightened criminal sanctions for behavior already prohibited under the Coolie Trade Prohibition Act. 349 Section 2 of
the law made it a crime for a citizen or resident of the United States to
transport a "subject of China, Japan, or any Oriental country" to the
United States "without their free and voluntary consent, for the purpose
of holding them to a term of service," and voided any contracts for such
labor. 350 Similarly, section 4 made it a felony to contract or attempt to
contract to supply the "labor of any coolly [sic]" in violation of laws
"prohibiting the cooly [sic] trade," including the earlier 1862 Act. 35 1 Because Chinese immigration under the credit-ticket system had been approved by Congress in the 1864 Immigration Act, and forced immigration of Chinese laborers to the United States was virtually nonexistent,
stiffening penalties against forced immigration served little or no purpose.3 5 2 These provisions did, however, serve a rhetorical purpose: If
prostitutes were female coolies, and coolies were already prohibited in
earlier legislation without abrogating the Burlingame Treaty, then a ban
on the importation of prostitutes must also be consistent with the terms
of the treaty.
Section 3 made it a crime to import a woman into the United States
for purposes of prostitution. In this respect, the Page Law could be
viewed as targeting involuntary labor generally. A closer look at the crim(statement of Frank M. Pixley, esq., representing the City of San Francisco) ("[T] he great
majority of them come from the city of Canton, the port of which is Hong-Kong, the
English sailing port."); id. at 174 (statement of Ezekiel B. Vreeland, Deputy Commissioner
of Immigration) ("They all come from Hong-Kong. They come from different portions of
China and take ship at Hong-Kong.").
346. As a practical matter, Japanese women did not represent a significant number of
female immigrants at this time. They did not begin arriving in large numbers until
decades later. See Hing, supra note 9,at 54 & tbl.4. There appears, however, to have been
enough awareness on the part of American lawmakers of the potential for widespread
Japanese immigration that they included women from "China, Japan, or any Oriental
country" in the language of the Page Law. Page Law 1.
347. Act of Feb. 19, 1862 (Coolie Trade Prohibition Act), ch. 27, 12 Stat. 340
(repealed 1974).
348. Page Law 1.
349. Id. 2, 4.
350. Id. 2.
351. Id. 4.
352. See supra Part II.B.1.

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inal provisions, however, indicates that the Page Law singled out prostitutes for the harshest penalties. While section 2 mandated a penalty of
up to one year in prison and a fine of $2,000, and section 4 mandated a
penalty of up to one year and a fine of $500; section 3, the section
criminalizing importation of women for purposes of prostitution, provided for up to five years in prison and a fine of $5,000. 3 5 3 Trafficking in
354
prostitutes was clearly far worse than trafficking in other kinds of labor.
The fifth and final section of the law was the one that most clearly
regulated immigration. Section 5 made it unlawful for certain "classes [of
aliens] to immigrate into the United States." There were only two such
classes: "persons who are undergoing a sentence for conviction in their
own country of felonious crimes" and "women imported for the purposes
of prostitution." 35 5 This section most closely mimicked the California
statutes, once again tying the prohibition against prostitutes to the more
conventional prohibition against convicts. 3 56 But this marked an important shift toward the federalization of immigration, as the exclusion of
convicts had historically been performed by the states pursuant to the
35 7
police power.
Like section 1, section 5 contained an enforcement mechanism.
Whereas section 1 required Asian women to obtain certificates declaring
that they were not emigrating for "lewd or immoral" purposes at the port
of departure, section 5 authorized the collector at the port of arrival to
inspect the vessel and certify that the occupants were not felons or women "imported for the purposes of prostitution."3 5 8 Any individuals not
certified had to be detained on the vessel pending ajudicial challenge to
the port collector's decision, unless the vessel master was willing to post
3 59
bond of $500 for each such "obnoxious person" or forfeit his vessel.
The purpose of the bond or forfeiture was to provide funds with which to
return the felon or purported prostitute to his or her home country. Although in theory section 5 applied to all immigrants, its enforcement was
likely to affect Chinese women differently than other immigrants, as they
were required under section 1 to have obtained a certificate attesting to
their virtue before setting sail. Other women, for whom a pre-departure
certificate was not required, were similarly spared scrutiny upon arrival.
Asian women, then, were subjected to two additional hurdles: Even if
353. Page Law 2-4.
354. For an exploration of how current antitrafficking law parallels this distinction
between sexual and non-sexual trafficking, see Chantal Thomas, International Law Against
Sex Trafficking, in Perspective 22-42, available at http://prod.law.wisc.edu/mini/wL (last
visited Jan. 23, 2005) (unpublished manuscript, on file with the Columbia Law Review).
355. Page Law 5 (internal quotation marks omitted). Political prisoners were
explicitly exempted from the class of excluded felons. Id.
356. See supra Part III.
357. The convict portion of the Page Law does not appear to have been effectively
enforced. See infra Part I.C.
358. Page Law 5.
359. Id.

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they managed to pass the first one by convincing the American consul in
Hong Kong that they had not entered into contracts "for lewd and immoral purposes," they could still be excluded upon arrival in the United
States if the port commissioner determined that they had been "imported
360
for the purposes of prostitution."
C. Enforcement
While the Page Law clearly targeted prostitutes, the result of the enforcement of this newly federalized immigration system was not just a reduction in prostitutes, but the virtually complete exclusion of Chinese
women from the United States. 36 1 Government officials who enforced
anti-Chinese legislation "demonstrated a consistent unwillingness, or inability, to recognize women who were not prostitutes among all but
wealthy applicants for immigration." 362 Women who wished to emigrate
from China to California now faced a multi-step process designed to weed
out suspected prostitutes.
The process began in China, with an interrogation by the Hong
363
Kong consul's office as mandated by section 1 of the Page Law:
Have you entered into any contract or agreement with any person or persons whomsoever, for a term of service within the
United States for lewd and immoral purposes?
Do you wish of your own free and voluntary will to go to the
United States?
Do you go to the United States for the purpose of prostitution?
Are you married or single?
What are you going to the United States for?
What is to be your occupation there?
Have you lived in a house of prostitution in Hong Kong, Macao,
or China?
Have you engaged in prostitution in either of the above places?
Are you a virtuous woman?
Do you intend to live a virtuous life in the United States?
Do you know that you are at liberty now to go to the United
States, or remain at home in your own country,
and that you
3 64
cannot be forced to go away from your home?
360. Id.
361. Records indicate that the number of Chinese women in San Francisco showed
little increase between 1870 and 1880. Chan, supra note 10, at 105-07 (suggesting further
that "a police crackdown in the mid 1870s made the traffic in women unprofitable, thereby
reducing, at least temporarily, the incentive to smuggle them into the country").
362. Peffer, supra note 10, at 9. Sucheng Chan has noted that press treatment of
Chinese prostitution also indicates that it decreased significantly following the passage of
the Page Law. Chan found numerous "lurid stories" about Chinese prostitution between
1854 and 1874, but found almost no mention of them from 1874 until the mid-1890s, with
the advent of the scare over "white slavery." Chan, supra note 10, at 107-08.
363. Page Law 1.
364. Despatch No. 301 from David H. Bailey, Consul, toJohn L. Cadwalader, Assistant
Secretary of State (Aug. 21, 1876), microformed on U.S. Dep't of State, Despatches from

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The State Department did not require the Hong Kong consul to
meet any particular evidentiary standard in determining whether a
would-be migrant was actually a prostitute. If the consul "ascertained"
that a woman had entered into a contract for "lewd or immoral purposes," he could deny her the certificate. 365 It is unlikely that most women-even those who were going to be prostitutes upon their arrival in
California, and knew it-would answer "yes" to questions such as "have
you lived in a house of prostitution," or "no" to questions such as "are you
a virtuous woman?" The key questions were those whose answers might
arouse the consul's suspicions but provide no actual proof of prostitution;
questions such as "Are you married or single" and "What is to be your
occupation in the United States?" If a woman answered "single" or if her
aspired occupation seemed improbable, the consul could conclude that
she was a likely prostitute. Indeed, the records made available to Congress during later hearings indicate that women who successfully immigrated after the passage of the Page Law were women who traveled with
men who they claimed were their husbands. 366 Most women (at least,
those who did not fail the initial interrogation) were subjected to this line
of questioning three times: once by the consul himself, once by the harbor-master of the British colonial government, and yet again on board
the ship by the consul. 367 The humiliation of these interrogations (as
well as the expense of retaining legal counsel to appeal adverse decisions)
368
prevented many women from even attempting to emigrate.
Officials at the Port of San Francisco verified the efficacy of the Page
Law. Testifying before the Joint Committee to Investigate Chinese Immigration just over a year after the passage of the Page Law, the deputy
commissioner of immigration in San Francisco explained, in reference to
prostitutes, that "this class of Chinese women have been stopped from
coming here. '3 69 Another San Francisco official provided statistics demonstrating that the Hong Kong consul's enforcement of the Page Law
had drastically reduced the number of Chinese women arriving in San
the United States Consuls in Hong Kong, 1844-1906, reel 10 (Nat'l Archives 1947)
[hereinafter Bailey Despatch].
365. Page Law 1; see also Peffer, supra note 10, at 47 (noting that the State
Department did not require the Consul "to establish conclusively that a prospective female
emigrant was a prostitute but permitted him to reject any woman he suspected of
immigrating for 'lewd and immoral purposes'").
366. See Committee Report, supra note 89, at 388-89 (statement of Giles H. Gray,
surveyor of the Port of San Francisco) (introducing immigration certificate of Wong Lau
Si, which states that she is traveling with her husband with the object of being with him in
San Francisco).
367. Bailey Despatch, supra note 364.
368. Peffer, supra note 10, at 56 ("[I1n addition to turning away applicants, consular
efforts to enforce the Page Law likely convinced many Chinese wives and daughters not to
attempt emigration at all."); Takaki, Strangers, supra note 41, at 40 ("The Page Law
intimidated all women considering emigration.").
369. Committee Report, supra note 89, at 175 (statement of Ezekiel B. Vreeland,
Deputy Commissioner of Immigration).

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Francisco. Giles H. Gray, surveyor of the Port of San Francisco, testified


before the Joint Committee that before the Page Law, steamers arrived
twice a month, often containing 200 to 400 Chinese women. 370 After the
law went into effect, these numbers dropped significantly: In the first
quarter, from July to October 1875, only 161 Chinese women arrived in
San Francisco; by the first quarter of the following year, the number had
dropped to 15.371
If a woman did manage to survive the interrogation in Hong Kong,
she could still be detained upon arrival in San Francisco. Section 5 of the
Page Law authorized the collector at the port of arrival to inspect the
vessel and certify that the occupants were not felons or women "imported
for the purposes of prostitution"; uncertified individuals were sent back
to China unless the vessel owner put up a five hundred dollar bond or
forfeited his vessel.3 72 It also appears that the Hong Kong consul took
photographs of the women, which were sent with the certificates to be
examined by the San Francisco port authorities. 37 3 Gray testified that
under normal circumstances, the Secretary of the Treasury would send a
new law in reference to the revenue department or the custom-house service to him immediately.3 74 The Page Law, not a typical revenue or customs statute but an unprecedented federal immigration statute, slipped
through the cracks in the system. Indeed, Gray did not see the law until
Congressman Page went himself to the custom-house in August of 1875
and informed the officials of the existence of the law and their duty to
carry it out. "We had no copy of it at that time," explained Gray, "he
procured it for us, and we consulted together and concluded to enforce
it."1375
According to Gray, the Page Law prohibited "the immigration or
landing of prostitutes and convicts from oriental countries. '376 Thus, despite the race-neutral language of the core provisions in sections 3 and 5
banning the importation of all prostitutes, Gray and his associates apparently interpreted the Page Law to require them to make "every investigation that we could with reference to females arriving from China upon
37 7
the China steamers."
Gray further testified that the Page Law was to ensure that Chinese
men did not bring in more than one wife. Gray produced documents to
the congressional committee as examples of how the Page Law worked in
practice; these documents included an immigration certificate for a wo370. Id. at 388 (statement of Giles H. Gray, surveyor of the Port of San Francisco).
371. Id.
372. Act of Mar. 3, 1875 (Page Law), ch. 141, 5, 18 Stat. 477, 477-78 (repealed
1974); see also supra Part IV.A.
373. See Committee Report, supra note 89, at 389 (statement of Giles H. Gray,
surveyor of the Port of San Francisco).
374. Id. at 395.
375. Id. at 394.
376. Id. at 388.
377. Id. at 387.

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man emigrating with her husband that notes that a second wife was denied permission to emigrate after her Page interrogation in Hong Kong.
What follows is the text of the immigration certificate, signed by the
Hong Kong counsel, David Bailey:
Sir: I inclose [sic] the declaration and photograph of a Chinese
woman who is emigrating to the United States with her husband
on the steamship Belgic. The man has two wives, but I have declined to grant a certificate to the second wife. The one allowed
to come has an asterisk marked over her head in the margins of
the photograph. It is my opinion that she is not going to the
United States for lewd and immoral purposes.
378
Very respectfully yours, D. H. Bailey, Consul
Thus, even though the law appeared to target only prostitution, the
Hong Kong consul was apparently interpreting "contracts for lewd and
immoral purposes" to cover a broader area than just prostitution per se.
Gray's testimony before the committee also highlights how much
more important the antiprostitution provisions of the Page Law were in
practice than the antifelon portions. Each woman arriving from China
had to have her own certificate and photograph. 3 79 In contrast, the men
on board a steamer were given one document for the entire group, certifying that none of the men were contract-laborers or criminals. 38 0 Furthermore, while the port commissioners and surveyors checked the women's individual certificates and identified them using the photographs,
their only method of checking the men was to make sure that the num38 1
ber of men arriving was the same number appearing on the certificate.
If, therefore, the Hong Kong consul gave certificates to "a thousand laborers or respectable people in China, and a thousand others who were
criminals should get on board, either in harbor or at high sea," the San
38 2
Francisco officials would never know.
The effectiveness of the law in preventing the emigration of Chinese
women generally is evident from the marked decrease from 1876 to 1882
in the percentage of Chinese immigrants who were female. In 1882
alone, during the few months between the enactment of the Chinese Exclusion Act and the onset of its enforcement, 39,579 Chinese entered the
United States, only 136 of whom were women. 383 The result was that the
Chinese were unable to create families within the United States.3 84 This
phenomenon was noted by Justice Field in his majority decision in Chae
Chan Ping v. United States, upholding the constitutionality of one of the
later Chinese exclusion laws.3 8 5 Justice Field traced animosity toward
378.
379.
380.
381.
382.

Id. at 389 (presenting Bailey's letter).


See id. at 391-92.
Id. at 392.
Id.
Id. at 393.

383. Takaki, Strangers, supra note 41, at 40.

384. Hing, supra note 9, at 45-46.


385. 130 U.S. 581, 595 (1889).

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Chinese laborers to their failure to bring women with them to form families, never mentioning the extraordinary lengths both state and federal
government had undergone to prevent Chinese women from migrating:
"Not being accompanied by families, except in rare instances, their expenses were small .... The competition between them and our people
was for this reason altogether in their favor. '38 6 In 1890, Chinese men
still outnumbered Chinese women in America by 27 to 1. The gender
imbalance was not rectified until after World War II: Women made up
almost ninety percent of Chinese immigrants from 1946 to 1952.387 And
because the Page Law effectively prevented the immigration of Chinese
women and kept the male-female ratio in San Francisco's Chinatown
skewed, it paradoxically encouraged the very vice it purported to be fight388
ing: prostitution.
V.

THE PAGE LAW AND THE DEVELOPMENT OF AN ANTI-CHINESE


IMMIGRATION POLICY

Standing alone, the passage of the Page Law would be a significant


event: It was the first restrictive immigration law passed in direct response to the desire to exclude a particular group of people, and it did so
by purportedly protecting the institution of monogamous marriage
against a dangerous system of polygamy and prostitution. But the Page
Law is also important in understanding anti-Chinese immigration legislation for several other reasons.
First, the Page Law demonstrates how the shift from state to federal
control over immigration reduced the ability of immigrants to successfully challenge these laws. Prior to the passage of the Page Law, federal
courts were developing an equal protection jurisprudence in cases challenging the state laws targeting Chinese women. As Congress began to
exercise control over immigration, this jurisprudential development
withered.
Second, the Page Law provided anti-Chinese forces with a foothold
that paved the way for the Chinese Exclusion Act and subsequent antiChinese legislation. This trend is visible in the Report of the Joint Commission to Investigate Chinese Immigration, 389 published two years after
the passage of the Page Law. The Report continued to focus on marriage
and prostitution, and broadened the inquiry into other areas. Third, the
Page Law illustrates the federal government's use of marriage as a regulatory weapon against Chinese immigration. This pattern continued in the
fifty years following the passage of the Page Law, even when it did so
through statutes ostensibly regulating the entry of male laborers, includ386. Id.
387. Hing, supra note 9, at 48.
388. See Peffer, supra note 10, at 105-06 (stating that the Page Law "helped
perpetuate the importance of prostitution" by creating a society of "unattached men").
389. Committee Report, supra note 89.

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ing the Chinese Exclusion Act. This Part explores each of these effects in
turn.
A. The Erasure of Equal Protectionfor Immigration: Chy Lung
Nearly a year after the enactment of the Page Law, the Supreme
Court put the final nail into the coffin of state-based immigration legislation in Chy Lung v. Freeman.390 In Chy Lung, the Court affirmed Justice
Field's decision in Ah Fong, conclusively determining that California's
statutes targeting "lewd or debauched" women were constitutionally impermissible. The decision makes no reference to the Page Law and appears on its face to reject the idea of excluding women as prostitutes, as it
strikes down a California statute that did just that.
Scholars have accordingly read Chy Lung to be "highly sympathetic to
the immigrant plaintiff,"39 1 striking down a "ludicrous" law.3 9 2 But compared to the Page Law, the California statutes were mild. The 1874 California statute required a five hundred dollar bond from anyone importing "lewd or debauched" women into the state; the 1870 statute was a bit
harsher, making it a misdemeanor to do so. 3 93 In contrast, the Page Law
banned prostitutes from immigrating outright, made the importation of a
prostitute a felony, and set forth a multi-step, rigorous interrogation process that targeted Chinese women at both the port of departure and the
3 94
port of arrival.
Read in light of the existence of the Page Law, it is clear that Chy
Lung did not mandate equality for the Chinese in California. Instead,
Chy Lung, in combination with the Page Law, offered a solution to the
thorny problem of the application of the newly adopted Fourteenth
Amendment to the Chinese. If states could not discriminate against immigrants arriving by boat, as Justice Field had held in Ah Fong, California
could be overrun with Chinese. Yet the Equal Protection Clause mandated just that.39 5 Consciously or not, the solution provided by Chy Lung
was to make immigration federal, thus allowing the federal government
to do itself what the states could not.
Chy Lung was brought on a writ of error to the Supreme Court as a
3 96
constitutional challenge by one of the female passengers on the Japan.
Unlike Justice Field's opinion in Ah Fong,Justice Miller's opinion in Chy
Lung did not address equal protection. At this point, the development of
an equal protection jurisprudence for immigration was hardly necessary-the Page Law had gone far beyond where any state had gone, and,
390. 92 U.S. 275 (1876).
391. Cleveland, supra note 9, at 109.
392. Chan, supra note 10, at 104 (arguing that in Chy Lung, "the ludicrousness of the
state law was ... exposed for public ridicule").
393. See supra text accompanying notes 210-228.
394. See supra Part IV.B.
395. In re Ah Fong, 1 F. Cas. 213, 213-14 (C.C.D. Cal. 1874) (No. 102).
396. 92 U.S. 275, 276-77 (1876).

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since it was a federal law, there was no means by which to challenge it on


39 7
equal protection grounds.
The Chy Lung decision, rather, strengthened the stand taken in favor
of federal control over immigration by Justice Field in Ah Fong. It located
the power to pass "laws which concern the admission of citizens and subjects of foreign nations to our shores" in Article I of the Constitution as
part of Congress's power over foreign commerce.3 98 State officials, according to the Court, could not be responsible for foreign relations: If
Congress does not control foreign commerce and immigration, a "single
State can, at her pleasure, embroil us in disastrous quarrels with other
nations '3 9 9 and "a silly, an obstinate, or a wicked commissioner may bring
disgrace upon the whole country, the enmity of a powerful nation, or the
'40 0
loss of an equally powerful friend.
Whereas Justice Field was troubled by the discriminatory targeting of
Chinese women by state immigration officials, in Chy Lung the Court was
outraged by the statute's potential to encourage extortion and corruption
among officials. The law's "manifest purpose," according to the Court,
"is, not to obtain indemnity, but money."40 1 Thus, an immigration official could exploit the broad reach of the statute to extort the innocent as
well as the guilty:
The woman whose error has been repaired by a happy marriage
and numerous children, and whose loving husband brings her
with his wealth to a new home, may be told she must pay a
round sum before she can land, because it is alleged that she
was debauched by her husband before marriage. Whether a
young woman's manners are such as to justify the commissioner
in calling her lewd may be made to depend on the40 sum
she will
2
pay for the privilege of landing in San Francisco.
Unlike Justice Field in Ah Fong, the Chy Lung court declined to rule
on the issue of equal protection, although it was briefed by the plaintiff.40 3 Justice Field declined to reiterate the equal protection views he
articulated in Ah Fong and joined the unanimous majority opinion without writing a separate concurrence. Although the Court echoed the
397. The Equal Protection Clause was not incorporated into the Fifth Amendment
until Boiling v. Sharpe, 347 U.S. 497, 500 (1954). For a critical assessment, see John Hart
Ely, Democracy and Distrust 32-33 (1980) ("This is gibberish both syntactically and
historically.").
398. Chy Lung, 92 U.S. at 280.

399. Id.
400. Id. at 279.
401. Id. at 280.
402. Id. at 281. Enforcement of the Page Law eventually led to the same result.
Consul David H. Bailey, the American consul in Hong Kong immediately following the
enactment of the law, charged each woman he certified to make the trip to the United
States ten to fifteen dollars for the privilege. Hirata, supra note 10, at 11; see also Peffer,
supra note 10, at 45-49 (discussing Consul Bailey's role as champion and implementer of
the Page Law).
403. Brief for Plaintiff in Error at 10-11, Chy Lung.

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plaintiffs equal protection argument, 40 4 it did so only in the context of


arguing that immigration policy affects international affairs:
[I]f this plaintiff and her twenty companions had been subjects
of the Queen of Great Britain, can any one doubt that this matter would have been the subject of international inquiry, if not
of a direct claim for redress? Upon whom would such a claim
be made? Not upon the State of California; for, by our Constitution, she can hold no exterior relations with other nations.40 5It
would be made upon the government of the United States.
Given that the subjects of the Queen were not being targeted by port
commissioners, and that the Page Law created a much stiffer barrier to
entry for Chinese women than the California statute, this heightened
rhetoric seems overblown. The California statute did not contradict federal policy; indeed, it was a milder version of the same discrimination
against Chinese women expressed in the Page Law.
On the same day that it decided Chy Lung the Court also handed
down the consolidated cases Henderson v. Mayor of New York and Commissioners of Immigration v. North German Lloyd. 40 6 Henderson struck down a
New York law requiring the owners of vessels landing foreign passengers
to give bonds of three hundred dollars for each passenger to indemnify
New York against their becoming public charges. 40 7 North German Lloyd
concerned a similar bond law passed by the state of Louisiana. 40 8 Together with Chy Lung, these cases marked the end of state-controlled
immigration.
While it is true that Chy Lung struck down discriminatory state laws,
when read in light of Congress's passage of the Page Law and California's
repeated attempts to retain control over immigration, Chy Lung appears
in a less favorable light. The deep irony is that the result of the Page Law
and Chy Lung was the creation of federal immigration laws that were far
more discriminatory than anything the states could have passed. When
the Reconstruction Amendments and the Civil Rights Acts threatened to
make discriminatory state immigration laws unconstitutional, the solution
was not to strike down the laws, but to federalize the power of immigration. This pattern was echoed in the late 18 7 0s, when California again
stepped up its anti-Chinese agenda, passing laws forbidding Chinese residents employment by private corporations or on public works, authorizing the legislature to remove aliens from the state who did not meet certain conditions, and empowering towns and cities to restrict Chinese to
Chinatowns or ghettos. 40 9 Although the Chinese were able to challenge
404. That is, that she was treated differently by the enforcers of the statute than a
woman from Great Britain or France would be.
405. Chy Lung, 92 U.S. at 279.
406. 92 U.S. 259 (1876). Because the Louisiana statute was identical to the New York
statute, the Court considered both statutes in one opinion.
407. Id. at 267, 275.
408. Id. at 275.
409. See Salyer, supra note 9, at 12.

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most of these laws under the Fourteenth Amendment, 410 once Congress
passed the federal Chinese Exclusion Act, these laws were simply preempted, and this avenue of redress disappeared.
At this pivotal moment, immigration law could have developed along
a completely different path. Following Justice Field's lead in Ah Fong, the
Supreme Court could have allowed the states to continue to regulate immigration, holding them to a standard of equal protection in doing so.
That is, states could have continued to use a broad understanding of "police power" to restrict immigrants they considered undesirable, as long as
these restrictions did not violate equal protection norms. Early on, these
norms would have been limited, but over time they would have expanded
along with equal protection jurisprudence generally. If that had happened, today we would have a much different set of assumptions about
the purposes of immigration, which level of government should control
it, and what kinds of restrictions are permissible. 4 1' But that is not what
happened. After 1875, federal immigration law burgeoned into a vast
system, with regulation of race and nationality at its heart.
B. Paving the Way for the Chinese Exclusion Act
The Page Law provided a foothold for the anti-Chinese forces in California. As the first piece of federal legislation restricting immigration, it
marked a turning of the tide for California-its Chinese problem was finally recognized as a national crisis. But the law, standing alone, was not
seen as sufficient to deter Chinese immigration. Over the next seven
years, the anti-Chinese forces grew and continued to devise methods of
restricting the Chinese. These forces were to a great extent motivated by
fear of competition from Chinese laborers, who accepted lower wages
than whites. But a reading of post-Page Law congressional testimony also
reveals that the fear of Chinese family structure-and the despotic, antidemocratic "nature" that this system signified-also continued to be an
4 12
important motivation behind exclusionary anti-Chinese legislation.
In 1876, Congress appointed a Joint Special Committee to Investigate Chinese Immigration. The Committee's report is an astonishing
410. Id. at 13.
411. For an argument supporting a return to state-based regulation of immigration,
see Spiro, supra note 12. But see Michael Wishnie, Laboratories of Bigotry? Devolution of
the Immigration Power, Equal Protection, and Federalism, 76 N.Y.U. L. Rev. 493 (2001)
(arguing that Congress cannot devolve its immigration power to the states, and thus that
state-based regulations of immigration must be subject to strict scrutiny) .
412. George Peffer has argued that the Page Law paved the way for the Chinese
Exclusion Act by giving the exclusion movement "time to gain momentum and add labor
advocacy to its moral emphasis." Peffer, supra note 10, at 42. While I agree that the Page
Law functioned as "a valuable stopgap measure," id., I would argue that both antilabor and
morals were issues throughout the development of the anti-Chinese movement, and that
the Page Law was passed first not because a moral justification against Chinese
immigration developed before a labor justification, but because the labor justification was
impossible to invoke due to the Burlingame Treaty as it existed in 1875.

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document, containing over 1,250 pages of testimony, much of it virulently


anti-Chinese. 4 13 The investigation was conducted by a congressional delegation sent to San Francisco. Each witness was asked the same twentyseven interrogatories. These witnesses included government officials,
health department officials, policemen, judges, merchants, bankers, manufacturers, farmers, contractors, officers of the Central Pacific Railroad,
officers of the Pacific Mail Steamship Company, physicians, missionaries,
"white workingmen," "[p] ersons who have lived in China," and "[1] eading
Chinamen who can speak English." 4 14 Of the twenty-seven questions
asked, a significant number concerned marriage, prostitution, and
415
morality.
The testimony presented in favor of the Page Law had been concerned mostly with the effect of Chinese immigration on the West Coast.
By 1876, however, Chinese immigration was becoming a national issue.
The investigation accordingly considered the possible effects of Chinese
immigration on the rest of the nation. The Chinese "propensity for disease" might not be fatal to the white population in a city with a climate
like San Francisco's, but if the "conditions existing in the Chinese quarter
of this city [were] transferred to New York, Saint Louis, Cincinnati, New
Orleans, or other large cities east of the Rocky Mountains," these cities
'4 16
would become "uninhabitable.
The voluminous testimony taken by Congress is difficult to summarize. A wide range of people expressed a wide range of opinions on issues
such as whether the Chinese should be excluded outright, whether Chinese already living in the United States should be sent back to China,
whether the Chinese were forcing down wages for white labor, whether
the Chinese could assimilate, and, if so, whether assimilation was desirable. 4 1 7 One notable theme that did emerge was that, even with increased
regulation of prostitution, a decision needed to be made about what to
413. See, e.g., Committee Report, supra note 89, at iv ("This evidence shows that the
Chinese have reduced wages to what would be starvation prices for white men and women
. ,.."); id. at vii-viii (stating that Chinese women "are bought and sold for prostitution, and
are treated worse than dogs," and that Chinese fail to care for their sick and dying); id. at
68-69 (alleging little hesitancy among native Chinese "in destroying female children at
early birth"); id. at 131-32 (describing leprosy and other diseases among immigrant
Chinese); id. at 140-43 (discussing Chinese in general and Chinese prostitutes in
particular as sources of smallpox and syphilis).
414. Id. at 3.
415. In particular, the following questions elicited testimony about Chinese marriage
and sexual practices: "What is [Chinese immigrants'] moral and physical condition?"; "In
what way do they live in this city?"; "How many have families?"; "How many Chinese women
are there in this country, and what is their condition and character? Are they free, or are
they bought and sold as slaves?"; "What is the population of China as far as can be
ascertained, and the general condition, manners, customs, and institutions of the people?";
and "What power has a State to prevent the introduction of prostitutes or vagrants from
foreign ports?" Id. at 2-3.
416. Id. at vii-viii.
417. See id. at iii-viii.

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do with other Chinese women who were still attempting to migrate.


Some insisted that the Page Law had ended the immigration of undesirable women. 418 Others testified that the Mayor and San Francisco police
department had effectively solved the prostitution problem by instituting
a crack-down on brothels. 41 9 Still others disagreed. 420 But no immigration regulation could undo the fact that in the Chinese quarters, there
were marriages between husbands and second wives. This reality continued to rankle.
Several witnesses lamented that the respectable first wives, or "wives
of honor," were not migrating, even after the Page Law. Frank M. Pixley,
representing the people of San Francisco and known for his anti-Chinese
views, insisted that Chinese women in California, even those who were
not prostitutes, were not proper wives at all:
[T]here is no domestic life among the Chinese in California
. . . . The true fact is, that the men here who have wives are
merchants and business men, wealthy men, and that they are
nominal wives. They are not the wives of honor. They are not
the wives as would be the first wife if they were China, but they
occupied that relation to them here that is common as Americans know as the mistress to the man. If there is one respectable
Chinese tested by the requirements of our civilization, the husband who has but one wife, or the wife who has but one husband, whose marriage vows were made in love and fidelity
before any authority or any altar that binds their conscience,
who have a home in California, and who intend to remain in
California and to preserve the marital relations until parted by
death, we do not know of it ....
Family! I think we shall be able
to show, literally, that there is not a family, as we understand the
honorable and sacred relation of the family tie, among the Chi42 1
nese in the whole State, or on the entire coast.
Those who disagreed insisted that bringing women to America was
the only way to make Chinese immigration work:
I really do think if we are to have this population here it would
be much better for us all to have more Chinese women, because
if they had a large number of Chinese women here, then the
Chinamen would marry and have children, and those children
would be a very much better class of people than the present
race of Chinamen; just, as a rule, the children of the ignorant
European population who come here, having the advantages of
418. See id. at 391-95 (statement of Giles H. Gray, surveyor of the Port of San
Francisco).
419. Id. at 211 (statement of George W. Duffield).
420. Id. at 144, 147-48 (statement of Alfred Clarke, Clerk at the San Francisco Police
Department).
421. Id. at 22 (statement of Frank M. Pixley, esq., representing the City of San
Francisco).

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our fine public schools, become intelligent and first-rate citi422


zens, much better citizens in many cases than their fathers.
In addition to a renewed emphasis on polygamy, the congressional
testimony also shows a broadening of social concerns to other public
health and sexual issues. The Committee elicited testimony on a number
of issues unconnected to labor: the use of opium, 4 2 3 the cleanliness of
Chinese living conditions (or lack thereof), 4 2 4 the small spaces in which
the Chinese lived, 425 the foods they ate, 4 2 6 their alleged propensities for
dishonesty, 42 7 the practice of sodomy,4 28 and their tendency to carry disease, especially smallpox, syphilis, and leprosy. 429 The fear of Chinese
prostitutes reached near-hysteria in the testimony of some witnesses, who
claimed that boys as young as five were contracting syphilis from irrespon430
sible Chinese prostitutes.
An important function of the Committee was to determine whether
the United States should attempt to renegotiate the Burlingame Treaty so
that it could pass legislation more sweeping in its restrictions than the
Page Law. Numerous witnesses advocated modifying the Burlingame
Treaty and legislation to further exclude the Chinese. 43 1 Congress's first
response, however, was the Fifteen Passenger Bill, passed in 1879.432
That bill would have restricted steamships from bringing more than fifteen Chinese passengers to the United States on a single voyage. President Rutherford Hayes vetoed the bill, however, as a violation of the Bur-

422. Id. at 142 (statement of Dr. John L. Meares).


423. Id. at 133.
424. Id. at 129.
425. Id.
426. Id. at 19.
427. Id. at 189.
428. Id. at 117 (statement of Thomas H. King, Merchant) ("I have [Chinese boys]
I have seen them in pollution quite
afflicted about the anus with venereal diseases ....
frequently on ships, and often on shore in China, where it is a common practice, a
common habit; I have seen it.").
429. Id. at 131 (statement of Dr. John L. Meares) (discussing leprosy transacted in
Chinese by syphilis transmitted from one generation to another); id. at 132 (rebutting idea
that Chinese women produced a more virulent form of the disease); id. at 202-04
(statement of Frederick A. Gibbs, Supervisor of the City and County of San Francisco,
Chairman of the Hospital Committee).
430. Id. at 14 (statement of Frank M. Pixley, esq., representing the City of San
Francisco (quoting testimony of Dr. Hugh H. Toland, founder of Toland's Hospital))
("[N] early all the boys in town who have venereal disease, contracted it in Chinatown....
The women do not care how old the boys are, whether five years old or more, so long as
they have money.").
431. See, e.g., id. at 10 (statement of Hon. Frank McCoppin, California State Senate)
("[T]his coast, being the most accessible to them, is in danger of being overrun by this
pagan horde, unless their coming be checked by legislation and a modification of existing
treaties.").
432. H.R. 2433, 45th Cong., (3d Sess. 1879).

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lingame Treaty, and then appointed a commission to renegotiate the


4 treaty.
The treaty was successfully renegotiated in 1880. The new treaty allowed the United States to limit immigration of Chinese laborers if their
immigration would affect (or threaten to affect) American interests, or
endanger the "good order" of the country. The only limit was that the
United States was prohibited from completely suspending Chinese immigration. 434 In 1882, after the renegotiation of the Burlingame Treaty,
Congress passed the Chinese Exclusion Act.4 35 The Exclusion Act suspended the immigration of Chinese laborers for ten years. The Exclusion Act, however, allowed Chinese residents of the United States to make
return trips to China, thus staying within the terms of the newly negoti4 36
ated treaty.
This regime changed in 1888 with the passage of the Scott Act. The
Scott Act prohibited the entry of all Chinese laborers, even those who
were residents of the United States leaving only to visit China. 43 7 The
Scott Act was later the subject of the famous case of Chae Chan Ping, or
the Chinese Exclusion Case, in which Justice Field shifted the root of the
federal immigration power from the Commerce Clause to a plenary
power inherent in national sovereignty. 43 While the Scott Act appeared
to regulate Chinese immigrants as laborers, just like the Page Law, it also
prevented a particular kind of family formation. Chinese men, after all,
were returning to China so that they could continue to support their extended families in China with the wages they earned in America, and in
many cases so that they could father children with the wives they had left
behind. 4 39 Preventing them from returning would prevent them from
establishing cross-continental, often polygamous, families.
C. Marriageand Post-Exclusion Act Regulation
The Page Law was not an isolated event in the efforts to exclude the
Chinese. Marriage continued to be a method of regulation throughout
the period of Chinese exclusion. Habeas corpus petitions filed by Chinese immigrants were so common that the California courts of the period
433. See Salyer, supra note 9, at 14; see also E.P. Hutchinson, Legislative History of
American Immigration Policy 72-73 (1981) (discussing various amendments to the
Fifteen-Passenger Bill and President Hayes' veto).
434. Renegotiated Burlingame Treaty, supra note 338, art. I, 22 Stat. at 826.
435. Act of May 6, 1882 (Chinese Exclusion Act), ch. 126, 1, 22 Stat. 58, 58
(repealed 1943).
436. Id. 3. Indeed, when immigration officials attempted to prohibit the reentry of
former residents without certificates, the Supreme Court interpreted the law in favor of the
Chinese returnees. See Chew Heong v. United States, 112 U.S. 536, 543 (1884).
437. Act of Oct. 1, 1888, ch. 1064, 1, 25 Stat. 504, 504 (repealed 1943).
438. 130 U.S. 581, 605-06 (1889).
439. McKeown, Transnational Chinese Families, supra note 10, at 97-98 (noting that
Chinese immigrants made "special trips back to China after a few years abroad especially to
take a wife and start producing descendents").

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have been referred to as a "habeas corpus mill. '440 Even though none of
the statutes passed after the Page Law singled out women as a category of
immigrants, courts continued to use Western marriage norms when applying these laws to women.
The federal government expanded its control over immigration by
passing general immigration laws that did not specifically target the Chinese. In 1891, Congress passed an act of general application that regulated the immigration of many of the classes of persons previously regulated by state laws, including criminals, paupers, the insane, and people
with "contagious diseases." This law went a step beyond the state law classifications, making polygamists excludable. 44 1 In addition, it set up the
Bureau of Immigration and permitted the federal government to deport
aliens within one year of their arrival if they were discovered to be excludable for any reason. 44 2 In 1892, the Geary Act not only extended the
Chinese Exclusion Act for ten more years, but also created the beginnings of a federal passport system. 4 43 Congress continued to maintain
the system of Chinese exclusion until 1943, and as nativist sentiment
spread, expanded the system of national targeting to include other immi44 4
grants, including those from Japan and Southern and Eastern Europe.
The use of marriage to regulate immigration runs like a thread
through these statutes and the cases interpreting them. The Chinese Exclusion Act and the Geary Act, for example, led to numerous cases concerning women excluded under the Acts by immigration officials. Courts
determined that a wife should be treated under the acts as taking on her
husband's status. This principle led to somewhat perverse decisions. In
The Case of the Chinese Wife, for example, Ah Moy, the wife of a laborer,
was found to take on his laborer status, even though she herself was not a
440. Christian G. Fritz, A Nineteenth Century "Habeas Corpus Mill": The Chinese
Before the Federal Courts in California, 32 Am. J. Legal Hist. 347, 347-48 (1988).
441. Act of Mar. 3, 1891 (Immigration Act of 1891), ch. 551, 1, 26 Stat. 1084, 1084.
442. Id. For a more detailed discussion of the Immigration Act of 1891 and its effect
on Chinese immigration, see Salyer, supra note 9, at 26-28.
443. Act of May 5, 1892 (Geary Act), ch. 60, 1, 6-8, 27 Stat. 25, 25-26 (repealed
1943). Numerous other acts were passed during this time that further restricted Chinese
immigration. See Act ofJuly 5, 1884, ch. 220, 23 Star. 115 (repealed 1943) (amending and
tightening restrictions in the Chinese Exclusion Act); Act of Oct. 1, 1888 (Chinese
Exclusion Act), ch. 1064, 25 Stat. 504 (repealed 1943) (same); Act of Nov. 3, 1893
(McCreary Act), ch. 14, 1-2, 28 Stat. 7, 7-8 (repealed 1943) (requiring certification of
residency for Chinese laborers, and defining "laborer" to include skilled and unskilled
immigrants); Act of Aug. 18, 1894, ch. 301, 28 Stat. 372, 390 (granting customs officers
final authority to exclude Chinese "unless reversed on appeal by the Secretary of the
Treasury").
444. See Act of Feb. 5, 1917 (Immigration Act of 1917), ch. 29, 2, 29 Stat. 874, 876
(repealed 1952) (restricting Asian immigration); Act of May 19, 1921 (Quota Act (Three
Per Cent Act)), ch. 8, 2, 42 Stat. 5, 5 (repealed 1952) (establishing the three percent
immigration quota limit); Act of May 26, 1924 (Immigration Act of 1924), ch. 190, 11, 43
Stat. 153, 159 (repealed 1952) (reducing the quota to two percent); see also Salyer, supra
note 9, at 121-38 (discussing the influence of nativism on American immigration policy).

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laborer.445 Although the husband had a certificate granting him entry


because he had already resided in California before the passage of the
Exclusion Act, the wife did not have such a certificate, and she was deported as a laborer. At first it appeared that the same principle would
apply to wives of merchants. In In re Ah Quan, the California Supreme
Court held that even though the wife of a merchant took on her husband's merchant status, she was still considered a separate person under
the exclusion laws and denied entry to the petitioner. 446 But fifteen years
later, the Supreme Court finally heard the issue and determined that
wives of Chinese merchants could enter. 447 The purpose of the exclusion
laws, the Court explained, was to prevent Chinese laborers from entering
under the guise of being one of the permitted classes. 448 Preventing the
wife of a merchant from entering would not serve this purpose. 44 9 Similarly, the Ninth Circuit held that wives of American citizens of Chinese
ancestry were exempt from the certificate requirement. 450 Todd Stevens
has argued persuasively that these cases are best read as "husband's
rights" cases: The principle of coverture, whereby a woman had no legal
identity separate from that of her husband, in many cases trumped the
exclusionary racial policy served by the exclusion acts. A husband had a
right to the "care and comfort" of his wife, even if he was Chinese. 4 51
Because a woman's status as exempt from (or covered by) the Chinese Exclusion Act and subsequent anti-Chinese immigration restrictions
was dependent on her marital status, immigration officials and courts devoted much of their attention to determining the validity of Chinese marriages. In these judgments, Western marriage norms often dictated the
validity of Chinese marriages. For example, in Ah Moy, the case where
the court deported a Chinese wife based on her husband's status as a
laborer, the court emphasized her youth, stating that "from her appearance in court," she "must be a mere child. '45 2 If her "husband" was serious about enjoying the privileges of marriage, the court concluded, he
could do so in China-he could "return and protect his child-wife in the
celestial empire." 453 In another case, immigration officials appear to
have concluded that a marriage was invalid in part because of the large
age gap between a 56-year-old husband and a 20-year-old wife, assuming
445. In re Ah Moy, 21 F. 785, 787 (C.C.D. Cal. 1884).
446. In re Ah Quan, 21 F. 182, 187 (C.C.D. Cal. 1884).
447. United States v. Gue Lim, 176 U.S. 459, 468-69 (1900).
448. Id. at 467.
449. Id. at 468.
450. Tsoi Sim v. United States, 116 F. 920, 925 (9th Cir. 1902).
451. Stevens, supra note 8, at 273-74; cf. Chan, supra note 10, at 138 (interpreting
cases excluding women as barring family formation among working-class Chinese but
"keeping a crack open" for the petite bourgeoisie).
452. In re Ah Moy, 21 F. 785, 785 (C.C.D. Cal. 1884).
453. Id. at 786.

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(incorrectly) that "Chinese customs frown upon the marriage of old men
4 54
with young girls."
Some judges probed more deeply into Chinese marriage customs in
an attempt to ascertain whether a marriage was valid. In In re Lum Lin
Ying, for example, the court wrestled with the dilemma of deciding
whether a marriage between a husband and wife who did not meet each
other before marriage was valid. 45 5 Lum Lin Ying had been betrothed to
her husband since the age of two, and their marriage was solemnized
according to the laws of China while she still resided there but her husband was in the United States. After researching Chinese marriage customs, the court determined that the marriage was valid. 4 5 6 Significantly,
the validity of the marriage rested on a finding that there was no evidence
that Lum Lin Ying was a prostitute. According to the court, "whispered
suggestions made on the authority of some of her countrymen" that she
was a prostitute did not constitute evidence, and thus "her rejection
would be a cruel injustice." 45 7 While this logic worked in Lum Lin Ying's
favor, the implication was clear: A woman who worked as a prostitute
could not be protected under the law as a wife.
Indeed, the strict dichotomy between wife and prostitute underlying
the Page Law continued to operate in federal immigration policy
throughout the era of Chinese exclusion. In 1907, the passage of a new
immigration act added another weapon to the federal government's arsenal by creating a means for deporting female immigrants who were
"found an inmate of a house of prostitution or practicing prostitution, at
any time within three years after she shall have entered the United
States. ' 4 5 s This law was frequently applied to women who obtained entry
45 9
to the United States as wives and were later arrested for prostitution.
454. Chew Hoy Quong v. White, 244 F. 749, 750 (9th Cir. 1918). Sucheng Chan has
noted with regard to this case that "many Chinese immigrants married late in life because
it took them years to save up enough money to do so." Chan, supra note 10, at 118.
455. 59 F. 682, 682 (D. Or. 1894).
456. Id. at 682-83.
457. Id. at 683-84.
458. Act of Feb. 20, 1907 (Immigration Act of 1907), ch. 1134, 3, 34 Stat. 898, 900.
Even before the 1907 Act, courts upheld the deportation of prostitutes under the theory
that they were "laborers" under the exclusion acts. See, e.g., Wong Ah Quie v. United
States, 118 F. 1020, 1020 (9th Cir. 1902); Lee Ah Yin v. United States, 116 F. 614, 616-17
(9th Cir. 1902). The 1907 Act was also notable because it was the first time that criminal
conduct within the United States was identified as a basis for deportation. See Jennifer
Welch, Comment, Defending Against Deportation: Equipping Public Defenders to
Represent Noncitizens Effectively, 92 Cal. L. Rev. 541, 547 (2004).
459. See, e.g., Quock So Mui v. Nagle, 11 F.2d 492, 493 (9th Cir. 1926) (upholding
deportation of women found in bed with a man not her husband even where there was no
proof that she was a prostitute); Hoo Choy v. North, 183 F. 92, 93 (9th Cir. 1910)
(upholding deportation of woman who entered San Francisco with her citizen husband
and lived with him until her arrest for prostitution); Haw Moy v. North, 183 F. 89, 91-92
(9th Cir. 1910) (upholding deportation of woman admitted as native-born citizen but
arrested for prostitution); Looe Shee v. North, 170 F. 566, 568-72 (9th Cir. 1909)
(upholding deportation of widow found working as a prostitute).

COLUMBIA LAW REVIEW

[Vol. 105:641

In 1910, the antiprostitution fever burst beyond the boundaries of immigration law in the form of the Mann Act, which not only broadened the
1907 law as applied to immigrants but also made it a crime to transport a
woman for purposes of prostitution across state lines. 460 In upholding
the deportation of women suspected of prostitution, the courts found
that by becoming a prostitute, a woman lost the legal protection of marriage. One woman, Li A. Sim, who was the wife of an American citizen of
Chinese ancestry, was ordered deported after she was found in a house of
prostitution. 46 1 By engaging in prostitution, the Court found, Li A. Sim
had lost her status as a wife:
This situation was one of her own making, and, conceding her
right to come into the United States and dwell with her husband
because of his American citizenship, it is obvious that such right
could have been retained by proper conduct on her part and
462
was only lost upon her violation of the statute.
Prostitutes were not the only immigrants outside the protections of
monogamous marriage. Polygamists, concubines, and women in arranged marriages were also targeted. Polygamists were first excluded as
one of the many classes of excludable immigrants in the 1891 Immigration Act. 463 In 1907, the exclusion was extended from polygamists to
"persons who admit their belief in the practice of polygamy." 464 This
change resulted in diplomatic problems with the Ottoman Empire, which
believed that the United States was discriminating against Muslims because of their religious belief in polygamy. 465 Both the 1907 and 1910
Acts added transporting a woman for any "other immoral purpose" to the
list of liability-creating acts, stretching the laws to cover many situations
other than clear-cut prostitution. 46 6 This change in language was intended to cover "complex situations" involving women who were neither
clearly wives in the monogamous, Christian sense nor prostitutes-concubines, mistresses, or women entering into arranged marriages. 4 67 It was
the "other immoral purposes" language of the 1907 law that resulted in
the indictment of John Bitty for attempting to bring his mistress from
England to live with him. 468 The Court held:
The prostitute may, in the popular sense, be more degraded in
character than the concubine, but the latter none the less must
be held to lead an immoral life, if any regard whatever be had to
460.
(codified
461.
462.
463.
464.
465.
466.
amended
467.
468.

White-Slave Traffic (Mann) Act, ch. 395, 2, 6, 36 Stat. 825, 825-27 (1910)
as amended at 18 U.S.C. 2421-2424 (2000)).
Low Wah Suey v. Backus, 225 U.S. 460, 466 (1912).
Id. at 476.
Act of Mar. 3, 1891 (Immigration Act of 1891), ch. 551, 1, 26 Stat. 1084, 1084.
Act of Feb. 20, 1907 (Immigration Act of 1907), ch. 1134, 2, 34 Stat. 898, 899.
Cott, supra note 5, at 139.
White-Slave Traffic (Mann) Act, ch. 395, 2, 36 Stat. 825 (1910) (codified as
at 18 U.S.C. 2421-2424); Immigration Act of 1907 2.
Haag, supra note 5, at 99-100.
United States v. Bitty, 208 U.S. 393, 398-99 (1908).

2005]

POLYGAMY, PROSTITUTION, AND FEDERALIZATION

715

the views that are almost universally held in this country as to


the relations which may rightfully, from the standpoint of morality, exist between man and woman in the matter of sexual
intercourse 469
Thus, for years following its passage, marriage cast a shadow on immigration laws targeting Chinese immigrants as well as increasing restrictive laws targeting other immigrant women. 4 70 The protection of marriage provided both a justification for and a method of excluding
Chinese women. The regulation of marriage was present at the birth of
the federal immigration system, and as that system expanded, marriage
norms were protected and reinforced each step of the way.
CONCLUSION

Marriage played an important yet largely unrecognized role in the


development of immigration law and, more generally, in the development of American population policy following the Civil War. With the
closing of the frontier, what had once appeared to be a virtually limitless
mass of land was suddenly bounded, and Congress shifted its attention
from encouraging westward expansion to restricting entry into this now
constrained space. While this policy was motivated in part by concerns
about labor competition, concerns about creating a white, Anglo-Saxon,
Christian culture were equally important. This goal was achieved in part
by restricting women, as bearers of children and of culture, from entry.
Classifying certain women as improperly married was an effective means
of shaping the population, both racially and culturally. 471 Definitions of
marriage were therefore integral to the development of a national population policy during the formative years of our country's immigration
system.
The Page Law's use of marriage norms as a means of exclusion continues to resonate today. Marriage continues to be a core concern in
immigration law and policy, and our laws continue to require immigration officials to evaluate the legitimacy of certain kinds of marriages over
others. Generally, the reason given for this inquiry is the prevention of
fraudulent marriages-marriages entered into solely to achieve residency
or citizenship. 47 2 But any decision about whether a marriage is "fraudulent" necessarily requires ajudgment about what a proper marriage is, as
opposed to what it is not. Immigration officials and courts continue to
inscribe cultural norms or stereotypes of marriage onto new immigrants
469. Id. at 402.
470. See generally Dubler, In the Shadow, supra note 5.
471. Laws restricting Chinese women are only one example of the use of marriage to
shape culture during this period. Congress and state and territorial legislatures also
encouraged white, educated women to migrate west, and many Western states began to
restrict intermarriage between whites and Native Americans.
472. See Immigration Marriage Fraud Amendments of 1986 (IMFA), Pub. L. 99-639,
100 Stat. 3537 (codified in scattered sections of 8 U.S.C.).

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[Vol. 105:641

by requiring them to act in particular ways, thus privileging some kinds of


marriage over others. 4 7 3 Prevention of domestic violence has been identified as an important policy goal through the use of a domestic violence
474
exception to the standard two-year conditional residency period.
Thus, policies about what kinds of marriages are acceptable (here, violence-free) shape laws about which immigrants will be included or
excluded.
Understanding this dynamic is important to the development of a
coherent and useful immigration policy. Immigration decisions are routinely based on judgments about which marriages are proper and which
are not, yet this is not an explicitly recognized function of immigration
law. Rather, determinations of who may enter into marriage have traditionally been left to states to decide. Immigration scholars must address
the thorny issue of whether federal administrative agencies and courts,
long considered inappropriate forums for family law decisionmaking,
should be in the business of establishing minimum standards of marriage
for immigrants. Finally, given that the majority of legal immigrants entering the United States today do so based on family grounds and not labor
categories, 47 5 any general theory of immigration law or policy proscription must grapple with what role the definitions of marriage should play.
473. In determining whether a marriage is valid for purposes of immigration, officials
consider whether the couple has commingled funds, cohabitated after the marriage, and
whether they have children. 8 C.F.R. 216.5(e) (2) (i)-(iii) (2004).
474. Under section 216(b) of the IMFA, an immigrant spouse seeking permanent
residency is subject to a two-year waiting period of "conditional permanent residency"
before obtaining permanent residency. During this period, if the marriage is ended in
annulment or divorce or is deemed fraudulent, the immigrant spouse becomes removable.
IMIFA 216(b) (codified at 8 U.S.C. 1186a(b) (2000)).
475. In 2002, 1,063,732 legal immigrants arrived in the United States. Office of
Immigration Statistics, U.S. Dep't of Homeland Sec., 2002 Yearbook of Immigration
Statistics 7 tbl.A (2003), available at http://uscis.gov/graphics/shared/aboutus/statistics/
IMM02yrbk/IMM2002.pdf (on file with the Columbia Law Review). Of these, 673,817 were
family-sponsored immigrants; only 174,968 entered based on employment preferences,
and only 126,084 were refugees or asylees. Id.

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We have the right not to be


rescued*: When Anti-Trafficking
Programmes Undermine the Health and
Well-Being of Sex Workers
Aziza Ahmed and Meena Seshu

Abstract
This paper highlights the impact of raid, rescue, and rehabilitation
schemes on HIV programmes. It uses a case study of Veshya Anyay
Mukti Parishad (VAMP), a sex workers collective in Sangli, India, to
explore the impact of anti-trafficking efforts on HIV prevention
programmes. The paper begins with an overview of the anti-trafficking
movement emerging out of the United States. This U.S. based antitrafficking movement works in partnership with domestic Indian antitrafficking organisations to raid brothels to rescue and rehabilitate
sex workers. Contrary to the purported goal of assisting women, the
anti-trafficking projects that employ a raid, rescue, and rehabilitate
model often undermine HIV projects at the local level, in turn causing
harm to women and girls. We examine the experience of one peer
educator in Sangli to demonstrate and highlight some of the negative
consequences of these anti-trafficking efforts on HIV prevention
programmes.
Keywords: HIV/AIDS, sex work, trafficking, prostitution, health, India,
anti-trafficking

SANGRAM, Bill of Rights, 2010.

ANTI-TRAFFICKING REVIEW Issue 1, June 2012

149

Part I. Introduction
This paper highlights the impact of raid, rescue, and rehabilitation
schemes on HIV programmes. It uses a case study of Veshya Anyay
Mukti Parishad (VAMP), a sex workers collective in Sangli, India, to
explore the impact of anti-trafficking efforts on HIV prevention
programmes. The paper begins with an overview of the anti-trafficking
movement emerging out of the United States. This US anti-trafficking
movement works in partnership with domestic Indian anti-trafficking
organisations to raid brothels to rescue and rehabilitate sex workers.
Contrary to the purported goal of assisting women, the anti-trafficking
projects that employ a raid, rescue, and rehabilitate model often
undermine HIV projects at the local level, in turn causing harm to
women and girls. We examine the experience of one peer educator in
Sangli to demonstrate and highlight some of the negative consequences
of these anti-trafficking efforts on HIV prevention programmes.

Methodology
This paper is the result of a human rights fact-finding.1 A human
rights fact-finding is a methodology used within the human rights
community for the purposes of documentation and advocacy. The
methodology employs interviews and focus group discussions, often in
partnership with communities affected by the human rights violations
being investigated. In this case, the documented rights violations
were products of the raid and rescue industry that is active in Sangli,
Maharastra.
Meena Seshu, the co-founder of Sangram, conceptualised this factfinding in an effort to document the impact of raids and rescues on
the sex workers collective and on HIV programmes for sex workers.
Aziza Ahmed contributed legal expertise and conducted secondary
research on the raid and rescue industry. In the course of the human
rights fact-finding, the authors worked with members of the collective
to investigate and interview key informants, including police officers,
lawyers, and members of the collective. All information contained in
this paper is available in the public record and in secondary academic
research. KB, whose story is documented below, is a leader in the

D F Orentlicher, Bearing Witness: The art and science of human rights factfinding Harvard Human Rights Journal, vol. 3, 1990, pp. 83136.

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ANTI-TRAFFICKING REVIEW Issue 1, June 2012

VAMP collective and was active in the fact-finding and documentation


of her case and of the impact of raids and rescues on the lives of sex
workers in Sangli and the related impact on HIV programmes.

Theoretical framing
This paper uses several frameworks developed by legal scholars to
understand the impact of anti-trafficking programmes and the related
conflation of sex work and trafficking on HIV projects. In the analysis
section of the paper, we also turn to public health literature to explain
the impact of the raid, rescue, and rehabilitation methodology on sex
workers.
Professor Janie Chuang has documented the rise of neo-abolitionism,
a US based movement of feminist abolitionists, conservatives, and
evangelical Christians to end trafficking globally.2 Despite common
knowledge that trafficking can occur in many labour sectors, the
majority of attention by neo-abolitionists is given to trafficking in the
sex sector. The motivations of these various anti-trafficking submovements differ considerably. Professor Janet Halley and her coauthors examine the rise of abolitionist feminism in particular,
highlighting its growing influence in the context of international legal
regimes.3 Feminist abolitionists are often driven by the dominance
feminist perspective that all sex work is trafficking and is thereby
coerced. This idea is premised on a larger notion of womens lack of
agency in sex.4 The work of sociologist Elizabeth Bernstein places the
anti-trafficking movement inside in the context of carceral feminism

J A Chuang, Rescuing Trafficking from Ideological Capture: Prostitution reform


and anti-trafficking law and policy University of Pennsylvania Law Review,
vol. 158, 2010, pp. 1655728.
J Halley, P Kotiswaran, H Shamir, & C Thomas, From the International to the
Local in Feminist Legal Responses to Rape, Prostitution/sex work, and Sex
Trafficking: Four studies in contemporary governance feminism Harvard
Journal of Law and Gender, vol. 29, no. 2, 2006, pp. 335424.
For a description of the dominance feminist position on sex work, see the
discussion of J Halley, P Kotiswaran, H Shamir, & C Thomas, From the
International to the Local in Feminist Legal Responses to Rape, Prostitution/
sex work, and Sex Trafficking: Four studies in contemporary governance
feminism Harvard Journal of Law and Gender, vol. 29, no. 2, 2006, pp. 335
424; See also K Abrams, Sex Wars Redux: Agency and coercion in feminist legal
theory Columbia Law Review, vol. 95, 1995, pp. 304376.(Proponents of
dominance feminism stressed the unrecognized pervasiveness of sexualized
domination in many venues of womens lives; they also highlighted the role of
this domination in shaping social views of women and womens conceptions of
themselves.)
ANTI-TRAFFICKING REVIEW Issue 1, June 2012

151

or the rightward shift of feminist organisations that offers increasingly


punitive solutions including the use of criminal law as a means to end
trafficking.5 Bernsteins work demonstrates how this rightward shift
is part of a growing culture of militarised humanitarianism by the
United States. The current coalitions acting to end sex trafficking
emerge from a long history of abolitionism fuelled by White Slavery:
the myth of young white women forced into prostitution. This precedent
movement that emerged in the 19th century provides the contours of
current anti-trafficking campaigns.6 Fuelled by the trope of the captured
young sex slave who cannot escape her trafficker neo-abolitionists
have become increasingly reliant on raids, rescues and rehabilitation
as a primary method of fighting sex-trafficking.
While this paper draws specific attention to the involvement of US
funded organisations and agencies in the raid, rescue, and rehabilitate
industry as an international force, it is important to note that many of
these projects are implemented by Indian national abolitionist
organisations. While there is no comprehensive data available on the
abolitionist movement in India, our own interviews and research
demonstrate the active engagement of these organisations in
abolitionist work and the receipt of funding and support directly from
international funding agencies and religious groups.7

Part II. Drivers of the International Anti-Trafficking


Movement: The influence of the US government and
civil society
The US Anti-Trafficking Movement
The United States is a key force in the push to end trafficking
internationally. The US Agency for International Development Office
of Women and Development has provided a total of 528 million dollars
to anti-trafficking projects since 2001.8 The neo-abolitionists played

E Bernstein, The Sexual Politics of the New Abolitionism Differences, vol. 18,
no. 3, 2007, pp. 128151.
J Doezema, Sex Slaves and Discourse Masters: The construction of trafficking,
Zed Books, New York, 2010.
Consulate General of the United States, Kolkata, U.S. Grants $600,000 to
Anti-Trafficking Initiatives in Eastern India, retrieved 9 November 2011,
http://kolkata.usconsulate.gov/wwwhipr040706.html; See also Apne Aap,
retrieved 9 November 2011, http://apneaap.org/index.php.

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ANTI-TRAFFICKING REVIEW Issue 1, June 2012

a key role in demanding the government to address trafficking through


funding, programming, and monitoring country progress towards antitrafficking. Further, the government through the State Department
Office to Monitor and Combat Trafficking in Persons (TIP Office)
instituted a range of disciplinary and regulatory measures for countries
that did not meet required standards of laws, policies, and programmes
and restrictions on US government funding both within and outside
the US.9
Relevant to this paper, in particular, was the introduction of neoabolitionist language into US funding for HIV/AIDS. The 2003
Presidents Emergency Plan for AIDS Relief (PEPFAR), like the
Trafficking Victims Protection Act specifically states that no funds
made available to carry out this Act, or any amendment made by this
Act, may be used to promote or advocate the legalization or practice
of prostitution or sex trafficking.10 This language is known as the
anti-prostitution loyalty oath (APLO). PEPFARs 15 billion dollars made
the US government the largest bilateral donor on HIV and AIDS and, in
turn, a heavy hand of influence on the future of the ability of sex
workers to respond to the HIV epidemic. The APLO has facilitated
access to funding for organisations that are willing to sign the pledge.
Further, it has promoted the US abolitionist agenda, extended support
to projects seeking to criminalise aspects of the sex industry and
bolstered organisations seeking to raid, rescue, and rehabilitate.

The Raid, Rescue, and Rehabilitate Industry


So I set off with the IJM [International Justice Mission] 11
investigator (who wants to remain anonymous for his own
safety) into the alleys of the Sonagachi red-light district one
evening, slipped into the brothel, and climbed to the third
floor. And there were Chutki and three other girls in a room, a
pimp hovering over them. Perceiving us as potential customers,
he offered them to us.The Kolkata police agreed to raid the
brothel to free the girl. I.J.M. told them the location of the

9
10

United States Agency for International Development, Trafficking in Persons,


retrieved 30 September 2011, http://www.usaid.gov/our_work/crosscutting_programs/wid/trafficking/index.html.
J A Chuang, op. cit.
United States Leadership against HIV/AIDS, Tuberculosis, and Malaria Act of
2003, Pub. L. No. 108-25, 2, 117 Stat. 711, 716 (2003) (current version at 22
U.S.C.A.
7601(23) (West 2010)).
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153

brothel at the last minute to avoid a tip-off from police ranks.


The police casually asked us to lead the way in the raid since
we knew what Chutki looked like and where she was keptSo
along with a carload of police, we drove up to the brothel and
rushed inside to avoid giving the pimps time to hide Chutki or
to escape themselves.12

The raid, rescue, and rehabilitate scheme refers to a process by which


brothels are raided by the police or NGO workers, women are removed
from brothels (rescued), and then placed in a rehabilitation facility. Raids
are typically conducted by police officers at the behest of local and
international organisations seeking to rescue and rehabilitate sex
workers. The International Justice Mission, described in the New York
Times op-ed by Nikolas Kristof above, is the recipient of over US$
900,000 from the government.13 In a recent evaluation, USAID detailed
IJMs raid and rescue process in detail:
IJM employs two methods for rescuing victims, one is brothel
raids in cooperation with the police, and the other is the buybust operation. In the latter, undercover agencies attempt
to purchase the services of an underage girl. Once the
perpetrator accepts the money, the police who are watching
and waiting, step in and arrest them. These raids and buybusts are targeted at perpetrators discovered through
information provided by undercover operatives.14

11

12

13

14

The International Justice Mission states that it is a human rights agency


that brings rescue to victims of slavery, sexual exploitation, and other forms
of violent oppression. The website of IJM states the core commitments of
the organisation to restore to victims of oppression the things that God
intends for them: their lives, their liberty, their dignity, the fruits of their
labor. Although IJM has been praised and supported by some as illustrated by
the quote here from NYTimes op-ed writer Nikolas Kristof, many others have
critiqued the work of IJM. For a critique of IJM, see: J A Chuang, op. cit.; E
Bernstein and J R Jakobsen, Sex, Secularism, and Religious Influence in U.S.
Politics, retrieved 10 December 2011, http://www.opendemocracy.net/5050/
elizabeth-bernstein-janet-r-jakobsen/sex-secularism-and-religious-influencein-us-politics; N Thrupkaew, The Crusade Against Sex Trafficking, retrieved
10 December 2011, http://www.thenation.com/article/crusade-against-sextrafficking.
N Kristof, Raiding a Brothel in India, retrieved 30 September 2011, http:
//www.nytimes.com/2011/05/26/opinion/26kristof.html.
Boston.com, USAID Contracts with Faith Based Organizations, retrieved 14
March 2012, http://www.boston.com/news/special/faith_based/faith_
based_organizations.htm.
USAID, International Justice Mission Anti-Trafficking Program in Cambodia:
Assessment 2006, retrieved 14 March 2012, http://pdf.usaid.gov/pdf_docs/
PNADG806.pdf.

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The raid and rescue is the first part of the process. Heavily reliant on
local police, raids are often violent not only for those accused of being
traffickers but also for the sex workers themselves. This has been
documented in numerous contexts including Southern Africa,15 Eastern
Europe,16 and India.17 The insistence on using the police in the context
of raids and rescues has been pushed by neo-abolitionists despite
evidence of police violence against sex workers. The level of violence
experienced by sex workers in the context of raids (both for the purposes
of arrest and rehabilitation) was noted by the World Health Organization
and the Global Coalition on Women and AIDS in 2005 Informational
Bulletin on violence against women:
However, both trafficking and violence against trafficked
women need to be understood more broadly in the context of
migration, and examined separately from sex work. At the
same time, it is important to note that in several countries,
certain activities such as rescue raids of sex establishments
have exacerbated violence against sex workers and
compromised their safety. For example, research from
Indonesia and India has indicated that sex workers who are
rounded up during police raids are beaten, coerced into having
sex by corrupt police officials in exchange for their release or
placed in institutions where they are sexually exploited or
physically abused. The raids also drive sex workers onto the
streets, where they are more vulnerable to violence.18

The final step for anti-trafficking organisations is often rehabilitation


of women in the sex industry. Rehabilitation programmes are run either
by non-governmental organisations including churches, or are
government programmes. The commonly told trope of the rescued
woman ends hereshe is now in the safe hands of the state or an NGO
who will rehabilitate her, find her a new source of employment, and at
some point release her from the rehabilitation home. In reality, this is
not the way the story typically ends. Often, sex workers are taken
into rehabilitation programmes where they are kept in jail-like

15

16

17

18

J Arnott, A L Crago, Rights Not Rescue: A report on female, male, and trans
sex workers human rights in Botswana, Namibia, and South Africa, Open
Society Institute, 2009.
Sex Workers Advocacy Network, Arrest the Violence: Human rights abuses
against sex workers in Central and Eastern Europe and Central Asia, 2009.
World Health Organization, Violence Against Women and HIV/AIDS: Critical
intersections. Information Bulletin Series, 2005.
Ibid.

ANTI-TRAFFICKING REVIEW Issue 1, June 2012

155

conditions, may experience abuse, and then are eventually released.


Rehabilitation programmes have come under increased scrutiny by public
health bodies and sex worker organisations concerned for the health
and safety of women removed from brothels. Documented extensively
by sex worker projects and human rights organisations (and often
acknowledged by the anti-trafficking programmes and police),
rehabilitation programmes often undermine the very purpose of their
existence given the high rates of violence experienced by women in
rehabilitation homes, the return of women to sex work (perhaps due
to a lack of employment opportunities otherwise), and after being
detained for extended periods of time disrupting their everyday
existence.19
To illustrate the harm of raid, rescue and rehabilitation schemes in
India, we turn to the case of VAMP in Sangli where anti-trafficking
efforts driven by abolitionists have severely undermined programmes
recognised for their success in addressing the HIV epidemic.

Part III. The Case of VAMP in Sangli, India


About VAMP
Approximately 2.5 million people in India are living with HIV.20 Sex
workers are amongst the groups most affected by the HIV epidemic in
India. There are 17.1% female sex workers in the state of Maharastra
who are HIV positive. A survey conducted in four states found that the
prevalence of HIV amongst sex workers is approximately 14.5%.21
In 1992, Sangram initiated a 5000-person sex worker collective called
VAMP in Sangli that mobilises and empowers sex workers to address
the various challenges faced by the sex worker community. The early

19

20

21

G Soderlund, Running from the Rescuers: New US crusades against sex


trafficking and the rhetoric of abolition Feminist Formations, vol. 17, no. 3,
2005, pp. 6487; C Overs, Caught between the Tiger and the Crocodile: The
campaign to suppress human trafficking and sexual exploitation in Cambodia,
retrieved 2 February 2011, http://www.aidslex.org/site_documents/SX0046E.pdf.
UNAIDS, India, retrieved 4 December 2011, http://www.unaids.org/en/
regionscountries/countries/india/.
B M Ramesh, S Moses, et al. Determinants of HIV Prevalence among Female Sex
Workers in Four South Indian States: Analysis of cross-sectional surveys in
twenty-three district AIDS, vol. 22, suppl. 5, 2008, pp. S3544.

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ANTI-TRAFFICKING REVIEW Issue 1, June 2012

inspiration for the movement came from the impact of HIV on the sex
work community.22 The programme distributes around 470,000 condoms
a month.23
A central component of the work of VAMP revolves around delivering
HIV information, care and support, and ensuring that sex workers are
able to access treatment services. VAMP staff and leaders are the
recipient of numerous accolades and awards for a demonstrated impact
on the lives of individuals in Sangli living with and at risk for HIV
including by the US government.24 Despite the public acknowledgment
of their success as an HIV programme Sangram and VAMP are subject
to the swinging political pendulum of US foreign assistance. The rise
in influence of the neo-abolitionists and the existence of the APLO,
for example, brought VAMP under the scrutiny of the US government
for providing sex worker services.25 Despite the simultaneous accolades,
Sangram was publicly accused of trafficking women and girls. VAMP
also became the target of a locally operated and internationally funded
raid and rescue industry set out to quell the political mobilisation of
sex workers in Sangli.26 This confluence of forces, the targeting of
Sangram by neo-abolitionists and the increasing focus on the
organisation by local and international anti-trafficking organisations
exemplifies of the negative consequences of how un-interrogated antitrafficking initiatives can cause serious harm to a successful HIV
programme.

22

23

24

25
26

Association for Womens Rights in Development, The VAMP/SANGRAM Sex


Workers Movement in Indias Southwest, retrieved 29 February 2012, http:/
/www.google.com/url?sa=t&rct=j&q=vamp%20sangram%20awid&source=
web&cd=1&ved=0CCYQFjAA&url=http%3A%2F%2Fawid.org%2Feng%2Fcontent%
2Fdownload%2F117347%2F1335451%2Ffile%2FCTW_VAMP_Movmnt_ENG.pdf&
ei=cqRPT8b_BoPg0QHNoMDqDQ&usg=AFQjCNF42FStt2-OOT9YJsJcWVv4jiO5
VQ&sig2=sFFiKtUq3Wy5Fh46_85e7g.
USAID, AIDStar: SANGRAM Collective, retrieved 30 September 2011, http://
www.aidstar-one.com/focus_areas/gender/resources/case_study_series/
sangrams_collectives.
USAID, AIDStar: SANGRAM Collective, retrieved 30 September 2011, http://
www.aidstar-one.com/focus_areas/gender/resources/case_study_series/
sangrams_collectives#tab_7; Human Rights Watch, Human Rights Watch to
Honor Indian AIDS Advocate, retrieved 4 December 2011, http://www.hrw.org/
news/2002/11/06/human-rights-watch-honor-leading-indian-aids-advocate.
M Souder, Letter to the Honorable James Kounder, 6 October 2005.
Y Pawar, Rogue NGO Separates Mother from Baby for 9 Days, DNA Sunday,
November 20, 2011; See twitter profile of Freedom Firm, 26 August 2011 and
8 August 2011; See Rescue Foundation website, retrieved 3 October 2011,
http://www.rescuefoundation.net/newsletter.html; CASAM, Who Stole the
Tarts, September 2009, p. 15. (A US-funded Christian NGO regularly initiates
police raids on a powerful collective of sex workers in Sangli. Many of the
women are devadasis and extremely articulate about their rights. Clearly the

ANTI-TRAFFICKING REVIEW Issue 1, June 2012

157

Given VAMPs focus on HIV programmes and its politicisation under US


funding on HIV through PEPFAR, this case study will focus on the impact
anti-trafficking organisations have on destabilising the HIV response
at the local level. The case study focuses on the story of KB27 a leader
in the VAMP collective, peer-educator, and brothel owner who is being
prosecuted under the Immoral Trafficking and Prevention Act (ITPA).28
ITPA is the primary legislation addressing sex work and trafficking.
The story of KB illustrates how arrests and prosecution affect sex work
communities and destabilise HIV programming for sex workers, in
turn harming the women who ITPA aims to help. KBs case is not an
example of an exceptional use of the ITPA. Rather, it is the routine
nature of KBs prosecution under the ITPA that manages to result in
enormous disruption of HIV programming that makes this case worth
documenting. It is also important to note that almost any act in the
sex sector can be construed to be criminal and prosecuted given the
broad language of the ITPA.

27
28

aim is two fold: to silence and quell the political mobilisation of these women
and eradicate the customary practise of the devadasi. The raids do not
distinguish between those who do sell sex and those who do not. Since they
are planned and executed under the auspices of rescuing minors, any young
woman who is found in the house of a sex worker is presumed to have been
trafficked. In these raids these women are arrested despite most being above
the age of legal consent.)
Real names have not been used to protect the confidentiality of the individual.
Sex work and trafficking in India is governed by several legislative and
constitutional frameworks including Article 23 of the Indian Constitution that
prohibits traffic in human beings, the Immoral Traffic in Persons Prevention
Act of 1986 (ITPA), and the Indian Penal Code 1860 which contains provisions
against the trafficking and slavery of women and children. ITPA, the primary
legislation addressing sex work and trafficking, is the more recent
manifestation of the Suppression of Immoral Traffic in Women and Girls Act of
1956 passed shortly after India became a signatory to the United Nations
International Convention for the Traffic in Persons and of the Exploitation of
Women in 1950. Interpretations of the impact of the ITPA have varied from an
understanding that it tolerates prostitution by not criminalising the sexual
intercourse itself but criminalising all other aspects of sex work including
seducing for the purposes of prostitution, keeping a brothel, detaining a
woman for the sake of prostitution, or living off the earnings of a prostitute.
Sex worker organisations contend that the language of the ITPA conflates sex
work and trafficking as the ITPA has actually resulted in the arrest of many
sex workers, particularly prior to the amendment change in 2009 that removed
solicitation of sex work as a crime.

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ANTI-TRAFFICKING REVIEW Issue 1, June 2012

The ITPA came about as a more recent iteration of the Suppression of


Immoral Traffic in Women and Girls Act (SITA) of 1956. SITA was
passed shortly after India became a signatory to the United Nations
International Convention for the Traffic in Persons and of the
Exploitation of Women in 1950 (Convention on Trafficking).29 The
Convention on Trafficking has a direct reference to older international
agreements on white slavery producing a continuous link between
the laws under the sex industry in India today and the historic
antecedents of a broader discourse of white slavery.30 KBs arrest in
Sangli is the product of these laws, ITPA in particular, that emerge out
of the historical and current international conventions and raids
occurring at the encouragement of domestic anti-trafficking
organisations empowered by an international anti-trafficking
movement. KBs story demonstrates how one HIV peer educator can
become ensnared in the politics of international abolitionism operating
at a local level.

International forces, local consequences: The case of KB


KB is a leader in the VAMP collective. A former sex worker, and now
brothel owner and HIV peer educator, she plays a key role in encouraging
sex workers to participate in the collective, fight against client violence,
and change the attitude of the police towards sex workers. Although
challenges remain, it is through the leadership of KB and others like
her that the local police in Sangli have begun to respond more effectively
to the needs of sex workers. This is a shift away from a more punitive
approach initially taken by the police. Through ongoing advocacy the
sex workers maintain a delicate relationship with the police.
KBs fate changed when she was approached by RA and her mother in
2010 with two requests: RA sought employment in a brothel and needed
a loan of 10,000 rupees for a medical procedure. KB gave RA the loan
and allowed her to work off the loan interest-free as part of her stay in
the brothel. RA was 18 years old at the time. VAMP policies do not
allow an individual younger than 18 to work as a sex worker in the
brothel. RA paid off the loan as agreed and continued to work in the

29

30

P Kotiswaran, Preparing for Civil Disobedience: Indian sex workers and the
law BC Third World LJ, vol. 21, 2001, pp. 161241.
Convention for the Suppression of the Traffic in Persons and of the Exploitation
of the Prostitution of Others, 21 March 1950.

ANTI-TRAFFICKING REVIEW Issue 1, June 2012

159

brothel splitting her earnings with the brothel owner. It is important


to note here that due to formal banking systems being inaccessible to
sex workers, savings and loan schemes between sex workers are very
common and often serve as a means of both security and credit.
During this time a local Christian organisation heard that a transaction
had taken place in which KB had loaned money that would be repaid by
sex work. A raid was planned. According to sex workers who were in
the brothel at the time of the raid, a man posing as a client came in
and asked for a girl. RA was produced for him and the man began to
have a sexual encounter with RA. At some point, he left RA to signal
to the police who were near the brothel that he had in fact found a
minor there. The police raided the brothel, arrested KB, and took RA
to the juvenile home. As described by the sex workers who were present
on the scene, the raid itself was violent with the police dragging the
women out by their hair. When the government hospital certified that
RA was an adult, the magistrate transferred her from the juvenile
home to the government correctional facility. RAs age was verified
through a bone scan that is frequently used by the courts to determine
whether or not sex workers are minors in the context of court
proceedings. Despite her legal capacity as an adult and her desire to
be released, she remained in a correction home under the auspices of
rehabilitation for several months. The correction home where RA was
purportedly rehabilitated is a locked home located an hour away from
Sangli. Women who are awaiting permission to be released by the
court occupy the home. The rehabilitation activities vary from
encouraging employment in cleaning services at the local hospital to
marrying the girls to men that visit seeking wives. The facility denied
permission to VAMP activists to visit RA on repeated occasions.
While it is unclear how this abolitionist organisation is funded,
interviews with local police as well as KBs lawyers indicate that much
of the funding and support for organisations conducting raids and
rescues in Sangli come through international sources. In fact, this is
clear when one visits the websites, twitter, or facebook pages of the
international and local organisations who often post messages after a
raid to highlight the success of rescuing women from the brothels,
many of which are located in Maharastra.31 The following announcement
containing false information appeared on the website of the

31

See twitter profile of Freedom Firm, 26 August 2011 and 8 August 2011; See
Rescue Foundation website, retrieved at 3 October 2011, http://
www.rescuefoundation.net/newsletter.html.

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organisation that facilitated the raid resulting in KBs arrest and RAs
detainment:
Efforts made by Indian Rescue Mission (IRM), a Christian
organisation, helped Indian police track an International Sex
Racket being run by Indian pimps with tentacles in major Indian
metros and with audacious plans to expand it internationally
This comes within a week of police action upon the tip off
received by IRM in rescuing a minor girl forced into prostitution
in a red light area in Sangli district Karnataka State on
December 11, 2010.32

Although RA is an adult, the photo accompanying the press release is


one of a crying girl who looks to be approximately four or five years
old.33
KB was charged under sections 3,4,5, and 6 of the ITPA that penalise
keeping a brothel, living off the earnings of a sex worker, procuring or
taking a person for the sake of prostitution, and detaining a person in
a place where prostitution is taking place.34 KB was released from
detention a few days after her arrest but her case is pending before
the courts. The framing of KBs charges in the context of the ITPA
reveals the larger conflation of sex work and trafficking that facilitates
the arrest of sex workers (despite a purported desire to rescue sex
workers) and is used to target leaders in the sex work community
whose actions can be construed to be in violation of the ITPA.

The impact of the raid, rescue and rehabilitate model on


HIV programmes in Sangli
The routine and common occurrence of raids and rescues severely
disrupt the lives of sex workers and the work of HIV programmes.
This is certainly the case with KB and RA. Both have experienced state
custody, KB is subject to ongoing prosecution and awaits her trial,
while RA was displaced in a correction home an hour away awaiting

32

33
34

J Philip, Indian Rescue Missions Recent Rescue of a Minor Girl, Helps Indian
Police Uncover an International Trafficking Racket, Indian Rescue Mission, 3
January 2011.
Ibid.
Interview with Lawyer, Aziza Ahmed, 29 March 2011.

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161

release. Their stories, common to the lives of sex workers in


Maharastra, tell a larger tale about the detrimental effects of raids
and rescues on HIV programmes and services at the local level. This
section seeks to highlight the primary negative consequences of this
and other raids on the health and well-being of sex workers in Sangli.
First, the raids themselves may have a negative impact on sex workers
lives. The violent and disruptive raids mean that clients do not come
to the brothel areas.35 This doesnt result in stopping sex work (as
perhaps hoped by the abolitionists who push for criminalisation of
clients) but drives it underground as sex workers begin to seek out
clients. Driving sex work underground results in sex workers taking
greater risks with their safety and health in their engagement with
clients. In the brothels where VAMP works, sex workers are less prone
to client violence because they take care to report violent clients to
the others and then work to exclude those clients from brothel
areas. This provides a safety mechanism premised on trust and
cooperation. The ongoing raids disrupt such systems of safety and
self-governance established by sex worker collectives.
Second, the unrelenting raids on brothels that are structured to
facilitate the delivery of HIV programmes have a detrimental impact
on a well-established public health principle: that the collectivisation
of sex workers reduces HIV risk.36 For example, with the assistance of
VAMP, sex workers have developed a means of monitoring condom use
and encouraging HIV testing. In one brothel area, sex workers collect
used condoms and count them in order to match it with the number of
clients a sex worker has. Where there is a discrepancy, the sex worker
is encouraged to go for an HIV test immediately and then again a few
months later. If the sex worker tests HIV positive, she joins a
community of sex workers who care for and monitor the health of sex
workers living with HIV.37 These mechanisms of care and support
established by sex workers have resulted in a de-stigmatisation of HIV

35
36

37

Interview with KB, Aziza Ahmed, 31 March 2011.


K Shannon and J Csete, Violence, Condom Negotiation, and HIV/STI Risk
Among Sex Workers The Journal of the American Medical Association, vol.
304, no. 5, 2010, pp. 5734; FHI/UNAIDS, Best Practice in HIV/AIDS Prevention
Collection 82 (Bunmi Makinwa & Mary OGrady eds., 2001), http://
www.fhi.org/en/HIVAIDS/pub/guide/bestpractices.htm; K Shannon and J
Csete, op. cit.; K M Blankenship, R Burroway, and E Reed, Factors Associated
with Awareness and Utilisation of a Community Mobilisation Intervention for
Female Sex Workers in Andhra Pradesh, India Sexually Transmitted Infections,
vol, 86, suppl. 1, 2010, pp. 16975.
Focus group with sex workers, Aziza Ahmed, March 31, 2011.

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and support infrastructure necessary for women living with HIV. The
raids and rescues disrupt the support systems often based on
interpersonal relationships and trust. During the raid and during KBs
time in state custody, any HIV prevention activities that KB was involved
in came to a halt.
Third, the arrest and detainment of sex workers in jails, remand
homes, and rehabilitation centres often disrupt HIV care and expose
individuals with HIV to tuberculosis and other diseases often rampant
in closed confined settings. This is of extreme concern given the high
numbers living with HIV. The remand homes, rehabilitation centres
and jails are not equipped to address the treatment and health needs
of sex workers living with HIV. Even where the settings are not violent,
the programmes are often problematic. The home in which RA was
held, for example, arranges marriages for the girls as a rehabilitative
exercise.38 Often when VAMP knows that a sex worker living with HIV
has been taken to a remand home, rehabilitation site, or arrested,
they attempt to locate her to ensure she is getting HIV medication. In
many cases, attempts to locate sex workers to ensure that HIV care is
continued fail because women and girls who are rescued flee rescue
homes or because VAMP staff is not allowed to meet and inquire about
her well-being.
Fourth, violence against sex workers at the hands of the state during
raids, rescues, arrests, in remand homes and rehabilitation centres is
well-documented.39 Despite this, organisations employing a raid, rescue,
and rehabilitate scheme rely heavily on the police. This has two primary
impacts: first, it subjects the sex workers to violence at the time of
the raid as well as in state custody; second, where organisations like
VAMP have effectively altered their relationship with the police to be
able to call on them for support, these anti-trafficking efforts
undermine this new and often delicate engagement.
Finally, the conflation of sex work and trafficking undermines the
innovative and effective anti-trafficking efforts by sex workers who
see the difference between sex work and trafficking. A recent study

38
39

Conversation with staff of home, Aziza Ahmed, 30 March 2011.


C Overs, Caught between the Tiger and the Crocodile: The campaign to
suppress human trafficking and sexual exploitation in Cambodia, retrieved 2
February 2011, http://www.aidslex.org/site_documents/SX-0046E.pdf.

ANTI-TRAFFICKING REVIEW Issue 1, June 2012

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of over 3000 female and 1300 male sex workers in India found that the
majority of females entering sex work did so independently.40 VAMP
sex workers effectively identify underage girls in brothels because
they are the first to encounter them. After identification, they work
to get them into safer living conditions. This has proven to be an
effective process because the underage girls first point of contact
may be other sex workers. Working directly with sex workers is an
effective alternative to the raid and rescue model.

Part IV: Conclusion and Recommendations


This case study demonstrates how the conflation of sex work with
trafficking at the international and local level, encouraged by the neoabolitionist movement inside the United States, impacts HIV
programmes at the local level. Increased funding for abolitionist forces
and decreased funding for sex workers, inspired by the APLO amongst
other U.S. initiatives, has tipped resources away from sex worker
projects. In the town of Sangli, the ongoing presence of internationally
supported abolitionist groups impacts the capacity of VAMP to
implement HIV programmes. Further, the reliance on the raid, rescue,
and rehabilitation scheme has proven to be both harmful to sex workers
and detrimental for public health projects.
In order to effectively address the HIV epidemic amongst sex workers
and truly end coercive practices in the sex industry, it is necessary to
learn from the success of effective programmes. VAMP provides a model
for anti-trafficking efforts as well as HIV prevention among sex
workers. The lessons are clear: allow for the participation and
leadership of sex workers in projects and programmes; learn from the
local organisations who remain consistently on the ground and work
every day within the nuances of the state-sex worker dynamic; and
allow for sex workers to define the terms of their engagement in
projects and programmes designed to assist sex worker communities.

40

R Sahni and V Shankar, The First PanIndia Survey of Sex Workers: A summary
of preliminary findings, retrieved 1 March 2012, http://sangram.orgDownload/
Pan-India-Survey-of-Sex-workers.pdf.

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ANTI-TRAFFICKING REVIEW Issue 1, June 2012

Aziza Ahmed is Assistant Professor of Law at Northeastern University


School of Law. Email: az.ahmed@neu.edu
Meena Seshu is co-founder of Sampada Gramin Mahila Sanstha
(SANGRAM). Email: info@sangram.org

ANTI-TRAFFICKING REVIEW Issue 1, June 2012

165

Contributors
Aziza Ahmed is Assistant Professor of Law at Northeastern University,
School of Law. Email: az.ahmed@neu.edu
Holly Burkhalter currently serves as Vice President for Government
Relations at International Justice Mission. She formerly served as the
U.S. Policy Director of Physicians for Human Rights and as the Advocacy
Director of Human Rights Watch. Email: contact@ijm.org
Fiona David is an independent consultant, specialising in the law and
research on migrant smuggling and trafficking in persons. Fiona has
worked on these issues since 1999, with clients including the United
Nations Office on Drugs and Crime, the International Organization for
Migration and the Australian Institute of Criminology. She has provided
expert evidence in a number of trafficking in person cases in Australia.
Email: davidf@law.anu.edu.au
Melissa Ditmore, PhD, is an independent consultant specialising in
issues of gender, development, health and human rights, particularly
as they relate to marginalised populations such as sex workers,
migrants and people who use drugs.
Email: mhd-gaatw@taumail.com
Anne Gallagher AO, is Technical Director of the Asia Regional Trafficking
in Persons project and an independent scholar and legal adviser.
Email: anne.therese.gallagher@gmail.com
Neil Howard is a doctoral student at the University of Oxford. He has
been researching and working on human trafficking since 2005.
Email: neil.howard@qeh.ox.ac.uk
Kari Lerum (PhD Sociology) is Associate Professor of Interdisciplinary
Arts & Sciences & Cultural Studies at University of Washington, Bothell,
and Adjunct Professor in Gender, Women, and Sexuality Studies at
University of Washington, Seattle. Her research and teaching focus on
institutions, sexuality, sex work, social institutions, and social justice.
Her articles have appeared in a number of sociology and sexuality
related journals and edited volumes. Email: klerum@uwb.edu

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ANTI-TRAFFICKING REVIEW Issue 1, June 2012

Kiesha McCurtis (MPH) is the project coordinator of the Desiree Alliance.


She is a proponent of community-based research strategies working
with sex workers and LGBTQ communities and human rights-based
approaches to HIV prevention through research, advocacy and training.
Email: kmccurtis@desireealliance.org
Julia Planitzer has worked as legal researcher at the Ludwig Boltzmann
Institute of Human Rights in Vienna, Austria (http://bim.lbg.ac.at)
since 2008. As of 2010, she is also a PhD Fellow at the Doctoral College
Empowerment through Human Rights, University of Vienna. Her thesis
focuses on the implementation of the Council of Europe Convention on
Action against Trafficking in Human Beings.
Email: julia.planitzer@univie.ac.at
Penelope Saunders (PhD Anthropology/Latin American Studies) is the
coordinator of the Best Practices Policy Project. She is a proponent of
community-based research strategies working with sex workers, LGBT
communities, immigrants and the homeless. Her articles have appeared
in the journal Social Justice, Health and Human Rights and other
publications. Email: psaunders@bestpracticespolicy.org
Meena Seshu is co-founder of Sampada Gramin Mahila Sanstha
(SANGRAM). Email: info@sangram.org
Frances Simmons is a lawyer, registered migration agent and researcher
at Anti-Slavery Australia, a specialist legal service for trafficked people
at the University of Technology Sydney Law Faculty where she
represents trafficked people in immigration and compensation matters.
She also works as an immigration consultant representing asylum
seekers, and as a casual academic.
Email: franceshsimmons@gmail.com
Abigail Stepnitz is currently the National Coordinator for the Poppy
Project, the largest independent anti-trafficking organisation in the
UK, providing services to trafficked women in England and Wales as
well as advocating and developing policy and best practice at the local
and national levels. She also consults for the United Nations and the
Organisation for Security and Cooperation in Europe. She holds an
MSc Human Rights from the London School of Economics.
Email: ajstepnitz@gmail.com
Rebecca Surtees is Senior Researcher at NEXUS Institute in Washington,
DC.

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167

Juhu Thukral is a leading expert on the rights of low-income and


immigrant women in the areas of sexual health and rights, genderbased violence, economic security, and criminal justice. She is a founder
of numerous ventures supporting women and LGBT people, and has
been recognised by Womens e-News as one of 21 Leaders for the
21st Century 2012. Twitter: @juhuthukral
St phanie Wahab (PhD Social Welfare) is an Associate Professor in the
Department of Sociology, Gender Studies and Social Work at Otago
University. Her teaching and research focus on social justice, intimate
partner violence, commercial sex work, and motivational interviewing.
Her articles have appeared in social work, health, public health,
qualitative, and sexuality based journals.
Email: stephanie.wahab@otago.ac.nz

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FROM THE INTERNATIONAL TO


THE LOCAL IN
FEMINIST LEGAL RESPONSES TO
RAPE, PROSTITUTION/SEX WORK, AND
SEX TRAFFICKING:
FOUR STUDIES IN CONTEMPORARY
GOVERNANCE FEMINISM
Janet Halley
Prabha Kotiswaran
Hila Shamir
Chantal Thomas

Table of Contents
Introduction ...................................................................................... 336
Part One: Describing Governance Feminism .................................... 340
Janet Halley ................................................................................ 340
Chantal Thomas .......................................................................... 347
I. Governance Feminism and Sex Trafcking........................... 349
II. Governance Feminism and Sex Trafcking in the
United Nations and United States Contexts ........................ 352
A. The International Stage ................................................ 352
B. The United States Stage ................................................ 356
C. The Outcomes and the Aftermath .................................. 358
Hila Shamir................................................................................... 360

Janet Halley is Royall Professor of Law at Harvard Law School. Prabha Kotiswaran
received her S.J.D. from Harvard Law School. Hila Shamir is an S.J.D. candidate at Harvard Law School. Chantal Thomas is professor of law at Fordham University School of
Law and visiting professor of law at the University of Minnesota Law School.
We want to thank Duncan Kennedy for reading the manuscript, Karen Engle for comments on Halleys contributions, Mary Lou Fellows for comments on Thomass contributions, and Nomi Levenkron for comments on Shamirs contributions. Janet Halley acknowledges particular debt to Engle's articles Feminism and its (Dis)contents: Criminalizing
Wartime Rape in Bosnia and Herzegovina, 99 Am. J. Int'l L. 778 (2005) [hereinafter
Engle, Feminism and its (Dis)contents] and Liberal Internationalism, Feminism, and the
Suppression of Critique: Contemporary Approaches to Global Order in the United States,
46 Harv. Intl L. J. 427 (2005). We also thank all the participants in the Governance Feminism Seminar sponsored by the Harvard Law School Program on Law and Social Thought in
March 2006. Last-minute research assistance from Elizabeth Lambert, Naomi Ronen, and
Janet C. Katz saved us. All errors of fact and judgment are ours.

336

Harvard Journal of Law & Gender

[Vol. 29

Prabha Kotiswaran ......................................................................368


Governance Feminism and the Postcolonial Predicament ..............368
Part Two: Developing Methods for Studying Governance Feminism ..377
Janet Halley.................................................................................377
Chantal Thomas ...........................................................................385
I. Governance Feminism as Global Governance..................385
II. Distributional Consequences ................................................388
III. By Way of Conclusion............................................................393
Hila Shamir ...................................................................................394
I. Three Regulatory Regimes of Commercial Sex......................395
A. AbolitionismThe Swedish Model.................................396
B. LegalizationThe Dutch Model ....................................398
C. A Hybrid RegimeIsrael...............................................401
II. MethodologyDistributive (Cost-Benet) Analysis ..............405
A. The Empirical Problem..................................................405
B. Assessing Legal ReformsBeyond the Prohibitive/
Permissive Vision of Law of Governance Feminism .......406
Prabha Kotiswaran ......................................................................409
I. From Injury to Redistribution: The Blind Spots of
Governance Feminism ........................................................411
II. From Injury to Redistribution: Legal Realism in the
Study of Sex Industries.........................................................414
Conclusion ........................................................................................419
Introduction
Feminist advocacy projects on rape and prostitution have, by now, a
signicant track record of achievement in international law. Feminists
have scored important advances in international humanitarian law governing rape in armed conict and have helped to devise international protocols and aid/sanctions schemes governing sex trafcking. We came together in this conversation in order to gure out whether feminist achievements have become sufciently institutionalized to warrant our describing
them and the advocacy networks that produced them Governance Feminism
(GF). Our answer: Yes. And we wondered whether, by comparing our
different projects on sexual violence and prostitution/trafcking, we could
nd any common features in GF. We kept comparing the legal results, the
legal attitudes taken by the feminists who prevailed, the strands of feminism
that docked most effectively in GF or the legal results it helped to produce, and the situation of feminists operating in the First or the developing world: were there any patterns? Our answer: Yes.
This Article is the result of an intense series of text and telephone
exchanges among the four of us, taking place from December 2005 to April
2006. Each of us has her own project which forms the basis of her con-

2006]

Four Studies in Contemporary Governance Feminism

337

tribution to this conversation. Janet Halley is working on new rules governing wartime sexual violence in international humanitarian law, specically the place of rape and sexual slavery in the decisions of the International Criminal Tribunal for the Former Yugoslavia (ICTY). Chantal Thomas
has published widely on the law of trade;1 one of her papers examines the
feminist debate over the 2001 U.N. Trafcking Protocol.2 Hila Shamir and
Prabha Kotiswaran have studied emergent national regimes addressing the
connection between local prostitution markets and international sex
trafcking in Holland, Sweden, and Israel (Shamir) and in India (Kotiswaran). Shamir compares legal regimes for governing sex trafcking and
the related prostitution industry within national borders; Kotiswaran studies
the highly local negotiations between stakeholders in the sex industry in
India through eld work in Tirupati and Kolkata. Shamir and Koti-swaran
take special note of the striking but very different impact of the 2001 Protocol and the United States Victims of Trafcking and Violence Protection
Act (the VTVPA)3 in Israel and India.
Halley introduces our concept of GF in Part One below, providing some
examples from her study of feminist achievements in International Humanitarian Law (IHL). The rest of Part One presents Thomass, Shamirs,
and Kotiswarans understanding of GF in the evolving sex trafcking regime. Part Two presents some thoughts by all four of us on the methodological implications of thinking about legal feminism in this way.
Before getting underway, a few terminological and methodological matters need a moments attention. First, it hardly seems coincidental that the
legal regimes we examine center on criminal prohibition.
We take it as a given, for a distributively focused legal analysis, that
punishing conduct as a crime does not stop or end it, as governance
feminists (GFeminists) sometimes seem to imagine. Rather, it enables
a wide range of specic institutional actors to do a wide range of things.
Prosecutors can indict actual violations as well as perfectly legal conduct;
courts can convict defendants who are guilty as well as those who are perfectly innocent; the criminal system will almost always leave some actual
violations unsanctionedproducing what Duncan Kennedy helpfully terms
the tolerated residuum of abuse.4 In sex work settings, police and landlords can extract bribes from legally guilty and legally innocent actors; prohibited conduct can go underground and become regulated by
means that are not specically legal. In addition, we assume that the objects
1

See, e.g., infra note 32.


Protocol to Prevent, Suppress and Punish Trafcking in Persons, Especially Women
and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 25, Annex II, U.N. GAOR, 55th Sess., Supp. No. 49, at 60, U.N.
Doc. A/45/49 (Vol. I) (2001) [hereinafter 2001 Trafcking Protocol].
3 Victims of Trafcking and Violence Protection Act of 2000, Pub. L. No. 106-386,
106, 114 Stat. 1464 (2000) [hereinafter Victims of Trafcking and Violence Protection Act].
4 Duncan Kennedy, Sexy Dressing, in Sexy Dressing Etc.: Essays on the Power
and Politics of Cultural Identity 126, 137 (1993).
2

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of criminal attention, including victims real or putative, are not passive,


but engage actively in bargaining in the shadow of the law:5 shifts in
the rules create the possibility for shifts in bargaining power among various stakeholders in the criminalized social world; and we assume nally
that these can be quite complex.6
All of those observations (and many more) bear on the feminist goal
of criminalizing sexual violence and rape in war through international humanitarian law. We also note a wide range of regulatory modes specic to
sex trafcking regimes, differently affecting the players we see as the key
stakeholders in the regime: the sex worker, the pimp, the john, the brothelkeeper, and the landlord. Thus we will distinguish four ideal types of
regulation:
A complete criminalization regime criminalizes all aspects of sex work,
so that both the sale and purchase of sex by the sex worker and the john,
and all third party involvement (of the pimp, the brothel-keeper, and the
landlord) can be prosecuted and punished criminally.
An abolitionist or partial decriminalization regime decriminalizes the
activities of sex workers alone, but criminalizes involvement of other actors
in the sex industry, including customers. As we understand it, the term abolition is adopted to claim an analogy with nineteenth-century American
antislavery abolitionism.7 Decriminalizing sex worker involvement in sex
5 Lewis Kornhauser & Robert Mnookin, Bargaining in the Shadow of the Law: The
Case of Divorce, 88 Yale L.J. 950 (1979).
6 We initially designated the method we were striving for as a new legal realism, only to
discover a current profusion of efforts to operate under this rubric. For a highly rationalist
one, aiming to weld cognitive psychological empiricism to progressive law reform efforts,
see New Legal Realism Symposium: Is It Time for a New Legal Realism, 2005 Wis. L. Rev.
335745 (2005). Our project, by contrast, draws more directly from the theoretical contributions of key American legal realists and from their redeployment in critical legal studies.
We still like the term, and use it in what follows.
7 The locus classicus for this analogy is probably Victor Hugos letter to Josephine
Butler, the inuential Progressive-era anti-prostitution feminist reformer, stating that [t]he
slavery of black women is abolished in America, but the slavery of white women continues
in Europe. Letter from Victor Hugo to Josephine Butler (Mar. 20, 1870), in Josephine E.
Butler, Personal Reminiscences of a Great Crusade 13 (1911). Hugos letter establishes the conceptual link between prostitution and slavery that gave rise to the term white
slave trade of the early twentieth century and created the basis for anti-prostitution activists to see themselves as abolitionists. See also Barbara Hobson, Uneasy Virtue: The
Politics of Prostitution and the American Reform Tradition 13964, 20936
(Univ. Chi. Press ed., 1990).
The analogy has a colonial dimension as well. Late nineteenth-century feminists
Elizabeth W. Andrew and Katherine Bushnell repeatedly described the condition of the
natives under legalized prostitution in India as enslavement. Elizabeth W. Andrew, The
Queens Daughters in India (London, Morgan and Scott 1899). Thus, they decried the
re-enslavement of native women by compulsory examination measures, construe Indian
legalized prostitution as an attempt to frighten an unwilling Christian public into a reluctant consent to return to a system which regards . . . the slave trade in women [as] an important part of the business of the state. Id. at 10001. They drew parallels between
American slaves and Indians in order to assert that English control of India constitutes
virtual ownership of a nation of slaves: the worst feature of all in slavery is the appropriation of women by their masters. Id. at 102.

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work is motivated, in this formulation, by the assumption that sex workers


are vulnerable victims of systematic patriarchal exploitation, and that at
minimum the state should protect them by not criminalizing their sex
work activity.
Complete, as opposed to partial, decriminalization involves the repeal
of any special criminal legislation dealing with sex work. Various activities involved in sex work can still be prosecuted as criminal offenses under generally applicable laws.
Legalization involves complete decriminalization coupled with positive legal provisions regulating one or more aspect of sex work businesses.
The typical options include labor law, employment law, zoning of sex businesses, compulsory medical check-ups, licensing of sex workers, etc.
As far as we know, there is no GF project in sex trafcking/prostitution
to promote complete criminalization; but feminists have differed sharply
over the other four models. GF, when it seeks to regulate rape and sexual
violence in war, has only one goal: prohibition. One striking agreement
that emerged early in our conversations was that GFeministsthough they
The conceptual and political link between chattel slavery and prostitution continues to
be forged in current feminist theory and in work in the eld. Sometimes its just a simile:
Carole Pateman, for example, argues that In prostitution, the body of the woman, and
sexual access to that body, is the subject of the contract. To have bodies for sale in the
market, as bodies, looks very like slavery. Carole Pateman, The Sexual Contract,
20304 (1988). At other times, the abolitionist conception is reected in legal scholarship
that explicitly denes prostitution as a form of slavery and that would adopt the Thirteenth
Amendment as the appropriate legal response. See Catharine A. MacKinnon, Prostitution
and Civil Rights, 1 MICH J. GENDER & L. 13, 22 (1993) ("the Thirteenth Amendment to
prostitution claims enslavement as a term and reality of wider application, which historically it has been"); see also Neal Kumar Katyal, Men Who Own Women: A Thirteenth Amendment Critique of Forced Prostitution, 103 YALE L.J. 791 (1993) ("Like slaves, prostitutes
are raped, beaten and tortured at the whim of the men who control them").
Activist work is deeply invested in the analogy. For example, the NGO Anti-Slavery
International denes its mandate to include historical chattel slavery, contemporary forced
labor, and sex trafcking. See Anti-Slavery International, http://www.antislavery.org/
homepage/antislavery/modern.htm (last visited Apr. 25, 2006) (responding to the question
what is slavery today?). Certain groups, like the International Abolitionist Federation,
have been active both during the historical campaign against the white slave trade, and during
the present campaign against sex trafcking. See Stephanie A. Limoncelli, International
Voluntary Associations, Local Social Movements and State Paths to the Abolition of Regulated
Prostitution in Europe, 18751950, 21 Intl Soc. 31, 3638 (2006) (describing historical
efforts of International Abolitionist Federation against white slavery); see also Kumar Katyal,
supra, n.4 (describing contemporary efforts of International Abolitionist Federa-tion).
Of course the analogy is subject to critique. For an assessment of the upsides and downsides of nineteenth-century feminist deployments, see Mary Ann Irwin, White Slavery as
Metaphor: Anatomy of Moral Panic, 5 Ex Post Facto: Hist. J. (1996), available at http://
www.walnet.org/csis/papers/irwin-wslavery.html; for a critique of contemporary feminist
work to criminalize sexual slavery, see Julie OConnell Davidson, Will the Real Sex Slave
Please Stand Up?, 83 Feminist Rev. (forthcoming 2006); and for a method for assessing
the advantages and dangers of movement-to-movement and identity-to-identity analogies
transmitted rhetorically through actual legal regimes, see Halley, Gay Rights and Identity
Imitation: Issues in the Ethics of Representation, in The Politics of Law (David Kairys
ed., Temp. Univ. Press 3d ed. 1998), revised version entitled Like-Race Arguments, in Whats
Left of Theory? 4074 (Judith Butler, John Guillory & Kendall Thomas eds., 2000).

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differ intensely, often bitterlyall imagine their favored criminal law reform
to operate simply by actually eliminating precisely and only the conduct it
outlaws. This observation holds whether the method prefered is abolition
or decriminalization: both are imagined to be directly liberatory for women.
In our view, however, all of these regimes can be given enhanced/intensied
enforcement, on one hand, or weakened/partial enforcement, on the other;
and different degrees of intensity can be exhibited even at the same moment by various administrative, judicial, and executive authorities. The
complexity of the resulting bargaining endowments is considerable. We also
take it as given that it would be rare to nd any of the ideal typical sex
work regimes operating in its pure form, and inconceivable that IHL will
ever operate as a pure sovereigntist command. Rather we look for complex law-in-action/law-in-the-books contingency. The result is, we think,
an exciting new research paradigm for feminists and non-feminists alike.
We offer some thoughts on that in the conclusion.
Part One: Describing Governance Feminism
Janet Halley
Ill rst reect on Governance Feminism generally, and then provide
some examples of its activity in recent reforms in international humanitarian law (IHL). GF is, I think, an underrecognized but important fact
of governance more generally in the early twenty-rst century. I mean the
term to refer to the incremental but by now quite noticeable installation of
feminists and feminist ideas in actual legal-institutional power. It takes
many forms, and some parts of feminism participate more effectively than
others; some are not players at all. Feminists by no means have won everything they wantfar from itbut neither are they helpless outsiders. Rather,
as feminist legal activism comes of age, it accedes to a newly mature engagement with power.
Just think of the range of feminist achievements visible all around us.
Inside the United States we can see it in elaborate sexual harassment programs in corporate and educational settings, in the tracking of female prosecutors into sex crimes units, in the elaboration of feminist expertise about
gender policy ranging from home economics to reproductive policy to
educational reform, and in the formation of non-governmental organizations (NGOs) and special ofces designated to the production and consumption of this expertise in policy and law settings across our legal landscape.
Many of the most breathtaking advances have been made in the rapidly evolving world of international law. One wonders, indeed, whether it
can be a coincidence that GF and the new governance have grown up
together. GF seen as an assemblage of strategies is thus quite complex. It
is not a monolithic top-down power. Rather, it piggybacks on existing forms
by power, intervening in them and participating in them in many, simul-

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taneous, often conicting, and, in many examples anyway, highly mobile


ways. It has found the novelty and civil-society open-texturedness of the
new governance and global governance to be quite hospitable; it seeks
not a monopoly of these forms but rather a plentiful presence within them.
GF-as-a-strategic-enterprise, in our examples anyway, shares with these very
complex moments an understanding of legal power as highly fragmented
and dispersed; they deemphasize the politics/law distinction in order to
work not only in the spectacularly legal domains of litigation, legislation,
and policymaking, but also in personal pressure campaigns, consciousness raising, and highly discretionary legal moments such as prosecutorial charging strategy. I like the word governance here precisely because it
suggests multiplicity, mobility, fragmentation, a regulatory or bureaucratic
legal style, as well as ready facility with non-state and para-state institutional forms (NGOs, law school clinics, ad hoc expert groups doing letter
writing campaigns). I use it to dodge the assumption that all legal power
inheres in the state and comes down from a pinnacle of legitimate coercive power. Behind my use of it lies Michel Foucaults distinction between
sovereigntist and governmental or managerial forms of power:
[W]ith sovereignty, the instrument that allowed it to achieve its
aimthat is, obedience to the lawswas the law itself: law and
sovereignty were absolutely inseparable. On the contrary, with
government it is a question not of imposing law on men but of
disposing things: that is, of employing tactics rather than laws,
and even of using laws themselves as tacticsto arrange things
in such a way that, through a certain number of means, such-andsuch ends may be achieved.8
It is very odd, then, to see across the range of GF projects that we included in this conversation a strong trend to advocate, and to gain GF successes in the form of, very state-centered, top-down, sovereigntist feminist rule preferences. Seen as a substantive rather than strategic project,
GF emphasizes criminal enforcement. It speaks the language of total prohibition. It envisions the legal levers it pulls as activating a highly monolithic and state-centered form of power. This is so whether abolition is the
preferred feminist legal method (then, the effect envisioned is, simply,
abolition) or whether decriminalization/legalization are foregrounded (then,
the goal is liberation). Just to get a sense of how remarkably this is so,
compare the criminal law/prohibitionist imaginaire that permeates the
legal regimes examined in this conversation with international environmental law: in the latter, the strategy of new governance legalism is to ar8 Michel Foucault, Governmentality, in The Essential Works of Foucault, 1954
84, Volume 3: Power 211 (James D. Faubion ed., Robert Hurley trans., The New Press
2000).

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ticulate principles which are subject to negotiation and rearrangement as


stakeholders grapple in various fora with emerging conicts.9 The profound turn in American feminism to criminal/social control visions of law,
traceable in feminist legal theory over the 1990s and persisting today, is
thus being internationalized. As between the techniques of power that GF
strategically deploys to make its changes, and the mode of state power it
seeks to recruit in our examples, there is an almost complete reversal.
To study the resulting feminist reforms as if they will function as
sovereign rather than governmental power is, I think, to make a tempting
but fundamental mistake. It is at this moment that all four of us turn for
help to American legal realism and the consequentialist attitude toward
rights best stated, for legal thinkers, in critical legal studies.
Some Examples of GF. The International Criminal Tribunal for Yugoslavia (ICTY) / International Criminal Tribunal for Rwanda (ICTR) /
Rome Statute process gives us a chance to see feminism acting in direct
involvement with highly powerful actors, writing on a clean legal slate, and
dealing with a large amount of social content relating to sexuality. How were
feminists involved, what achievements did they claim, and (perhaps most
interesting) which feminist ideas were able to dock in IHL and which
were left at sea?
Kelly Askin, a feminist activist deeply involved in the process, describes some of the things feminists did:
The cases demonstrate that female judges, investigators, prosecutors, and translators, particularly those with expertise in gender
crimes, are extremely useful in the prosecution of gender crimes.
They further demonstrate that there must be political will to prosecute sex crimes, and that pressure exerted from NGOs is often
indispensable to ensuring that gender crimes are investigated and
indicted.10

9 See generally Phillippe Sands, Principles of International Environmental


Law, Volume I: Frameworks, Standards and Implementation (1995).
10 Kelly D. Askin, A Decade of the Development of Gender Crimes in International
Courts and Tribunals: 19932003, 11 Hum. Rts. Brief 16, 19 (2004). Engle collects other
feminist statements to the same effect. See also Joanne Barkan, As Old as War Itself: Rape
in Foca, Dissent, Winter 2002, at 60, 62 (From the start, most observers considered the
[ICTY] a sop to human rights and feminist activists who wanted intervention . . . . Almost
no one expected it to succeed. And yet, to some extent . . . it did.); Christine Chinkin,
Reconceiving Reality: A Ten-year Perspective, 97 Am. Soc. Intl L. Proc. 55, 55 (2003)
(observing that the effort to secure recognition of gender crimes from the ICTY has met
with considerable success); Hilary Charlesworth, Feminist Methods in International Law,
93 Am. J. IntL L. 379, 386 (1999) (arguing that the ICTY recognition of sexual violence
as criminal under IHL was the result of considerable work and lobbying by womens
organizations); International Justice for Women: the ICC Marks a New Era, Human Rights
Watch Backgrounder, July 1, 2002, http://www.hrw.org/campaigns/icc/icc-women.htm.
(Womens rights activists throughout the worldof every political stripe, faith, sexual orientation, nationality, and ethnicitymobilized at each step of the International Criminal Court

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Note the condent invocation of female professionals in a wide range of


roles, and the conclusion that they (among others) were indispensable in
concentrating ICTY attention on the successful prosecution of sex crimes.
Other feminists seem to concur. Joanne Barkan notes:
[T]he new International Criminal Tribunal for Yugoslavia looked
like an exceptional chance in 1993 for advocates of human rights
for women to make some progress. But every step forward, as it
turned out, required a lobbying campaign. Nongovernmental organizations and university-based institutes wrote briefs and letters, requested meetings, did press work, and held seminars and
conferences.11
Rhonda Copelon provides evidence of the close interaction between feminist
activists, judges, and prosecutors as the ICTY charges were being drawn
up.12
The struggle was often intense: as Barkan testies, The advocates
work had to be thorough.13 When ICTY chief prosecutor Justice Richard
Goldstone (of the Constitutional Court of South Africa) issued his rst
document making cursory reference to mass rapes of women but specically singling out, as what was worse, a mans being forced to bite off the
testicles of another man, a swift and effective NGO coalition was formed
to intervene: The Blaustein Institute, the Womens International Human
Rights Clinic, and the Harvard University Human Rights Program made
their critique in an amicus memorandum, and the prosecutors ofce reworded the motion.14 Even in the early stages of the tribunals work, the
lobbying to get prosecutors to pay attention to sexual offenses paid off.15
Barkan understands this intervention to be feminist. We are seeing here
a fascinating inltration of specically feminist activism into generalist
forms of power-wielding. The result is the transposition of feminist ideas
into specically not-feminist forms of power. For instance, Justice Richard
Goldstone, looking back on his work as prosecutor before the ICTY and
the ICTR and, perhaps contemplating the very exchange which Copelon
records, has recalled the effect of feminist NGO activism this way:
Let me start with the enormous strides that have been made by the
tribunals in the development of the normative law. There has been
(ICC) process. . . . That the ICC has come into force today and is potentially a powerful
instrument for protecting womens rights is a testament to this indefatigable activism and
determination.)
11 Barkan, supra note 10, at 63.
12 Rhonda Copelon, Surfacing Gender: Re-Engraving Crimes Against Women in Humanitarian Law, 5 Hastings Womens L.J. 243, 25354 & n.46 (1994).
13 Barkan, supra note 10, at 63.
14 Id.
15 Id.

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substantial progressive development of humanitarian law as a


consequence of the establishment of the ICTY. Of real importance
are developments in the law with respect to gender offenses. From
my very rst week in ofce, from the middle of August, 1994 onwards, I began to be besieged with petitions and letters, mainly
from womens groups, but also from human rights groups generally, from many European countries, the U.S. and Canada, and also
from non-governmental organizations in the former Yugoslavia.
Letters and petitions expressing concern and begging for attention,
adequate attention, to be given to gender related crime, especially
systematic rape as a war crime. Certainly if any campaign worked,
this one worked in my case . . . .16
Worked, but not always immediately or perfectly. For example, feminists working with the ICTY struggled hard to secure a prosecution and
conviction of somebody for the repeated rape of Muslim and Croat women
detained in large camps and schools: they wanted the Serbs who did
this to be convicted of sexual slavery. The ICTY frustrated this goal, ultimately convicting two men, Dragoljub Kunarac and Radomir Kova, of
detaining just a few women and girls in a house and an apartment, and
convicting them not of sexual enslavement but of enslavement simpliciter. It
made sense that the court stuck with enslavement as its grounds for liability: nowhere in its authorizing statute or any other source of authority
in IHL was there authority for an IHL crime sexual slavery. Askin bitterly mourned this loss:
The Judgment took care to emphasize that control over a persons
sexual autonomy, or obliging a person to provide sexual services,
may be indicia of enslavement, but such indicia are not elements
of the crime. The facts of the case demonstrate that the enslavement and rape were inseparably linked and the accused enslaved
the women and girls as a means to effectuate continuous rape.
Since a primary, but not necessarily exclusive, motivation behind the enslavement was to hold the women and girls for sexual access at will and with ease, the crime would most appropriately be characterized as sexual slavery. Regrettably, the term
sexual slavery was never used in the judgment.17
Feminists continued to focus on sexual slavery, however, and it is now
rmly ensconced in the Rome Statute as a war crime and a crime against
16 Richard Goldstone, The United Nations War Crimes Tribunals: An Assessment, 12
Conn. J. Intl L. 227, 231 (1997) (emphasis added).
17 Kelly D. Askin, Prosecuting Wartime Rape and Other Gender-Related Crimes Under
International Law: Extraordinary Advances, Enduring Obstacles, 21 Berk. J. Intl L. 288,
340 (2003).

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humanity.18 And I wont go into detail, but the record strongly suggests that
GF nally achieved this change by adapting to a legislative process the
very same techniques they deployed in the ICTY: NGO monitoring, pressure, and rule-drafting of a very intense and sustained kind.19
In addition to these civil society strategies, GF has also worked hard
to get its people hired by governments where they participate in the bureaucracy of power. Here we encounter feminism as an expertise. Special
advisors on gender-related violence constitute one strategy. Prosecutor Goldstone created a Legal Advisor for Gender-related Crimes and appointed
Patricia Viseur Sellers to the post in 1999.20 The domain is literally scattered with Special Rapporteurs on sexual violence. And international feminist activism has been recognized as a qualication for sitting on the
bench in the ICTY. Heres how it happened. In one important ICTY prosecution, the accused, Anton Furundija, moved to disqualify Judge Florence Ndepele Mwachande Mumba (Zambia) on the ground that her participation in the Trial Chamber proceedings created an appearance of bias.
She had been a member of the U.N. Commission on the Status of Women
during the Yugoslav war and had participated in its work on allegations
that mass rapes were occurring there. Moreover, the Prosecutor in Furundija and three amicus authors in the case had participated in the U.N.
Fourth World Conference on Women in Beijing,21 where the U.N. Commission had participated in efforts to secure legal declarations that rape is
be a war crime. The Appeals Chamber dismissed the idea that these feminist decision makers introduced bias.22 Its reasoning, according to Mappie
Veldt: Judge Mumbas membership of the UNCSW and her general experience in the eld were, by their very nature, an integral part of her qualications for nomination as judge of the ICTY.23 Feminism as neutrality.
This is going to be hard to study.
There seems to be nothing intrinsically international about this style
of participating in lawmaking. The same methods appear in the work of
Orit Kamir, a prominent Israeli feminist who studied with Catharine A. Mac18 Rome Statute of the International Criminal Court, Art. 8(2)(b)(xxii), U.N. Doc. A/
CONF.183/9 (July 1, 2002).
19 Mahnoush H. Arsanjani, The Rome Statute of the International Criminal Court, 93
Am. J. Intl L. 22, 23 (1999). Feminist NGO involvement in the subsequent negotiations
to establish the elements of crimes to guide interpretation of the statute was similarly
intense. See William Pace & Jennifer Schense, The Coalition for the International Criminal Court, in The International Criminal Court: Elements of Crimes and Rules of
Procedure and Evidence 705, 71823 (Roy S. Lee ed., 2001).
20 Engle, Feminism and its (Dis)contents, supra note , at n.16.
21 Report of the Fourth World Conference on Women, Beijing, Sept. 415,
1995, U.N. Doc. A/CONF.177/23/Add.1 (Oct. 27, 1995).
22 Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-A, Judgment, 192215 (July
21, 2000).
23 Mappie Veldt, Commentary, in Annotated Leading Cases of International
Criminal Tribunals, Vol. III: The International Criminal Tribunal for the Former Yugoslavia 19971999 357, 358 (Andr Klip & Gran Sluiter eds., 1999) (emphasis
added).

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Kinnon in the United States and then returned to Israel to teach and to
work for feminist legal reform. Kamir writes quite engagingly about how
to adapt MacKinnons theoretical and law reform ideas to Israeli social and
legal culture: radical feminism becomes the source of ideas for law reform in a process of translation, in which the right to be free of sex discrimination becomes the right to human dignity, and the source of law
shifts from litigation/adjudication to legislation.24 Kamir sounds almost
uncannily like Askin when she describes the process leading to the Knessets 1998 codication of a sex harassment statute: The new law was the
product of a unique cooperation among women Knesset members, feminist activists, pro-feminist jurists at the Ministry of Justice, and feminist
legal academics.25 The GF question to ask now would be: will the resulting statute be understood, within Israeli society, to represent feminists
punctuated but distinctive capture of one tiny bit of the state, or as a guarantee, a certicate, of the pervasive civility of male/female gender across
Israeli national life?
Similar questions will come up if governance feminists (GFeminists)
succeed in their oft-professed aim to download their international law reforms into domestic legal regimes. Feminist IHL advocacy explicitly espouses the goal of affecting national legal regimes. ICTY/ICTR Justice
Louise Arbour sees feminist IHL activism as a legal vanguard for national law:
If you look at the denitions of sexual offenses that were provided in the Akayesu, Kovac, Furundzija and Foca cases, you can
see that they were forming a denition of the actus reus and mens
rea, bringing the international forum to the cutting edge of what
is being done in most domestic departments.26
MacKinnon advocates international policing of sexual violence under IHL
in part because, [p]resumably, once they knew intervention was a real
possibility, states would take steps to avoid it by moving to correct the
problem.27 Indeed, feminists sometimes make strategic decisions about
what to seek in IHL precisely with an eye to national incorporation. When
some feminists argued that there should be no consent defense to rape under
24 Orit Kamir, Dignity, Respect and Equality in Israels Sexual Harassment Law, in
Catharine A. MacKinnon & Reva B. Siegel, Directions in Sexual Harassment Law,
56181 (2004).
25 Id. at 562.
26 Louise Arbour, Crimes Against Women Under International Law, 21 Berk. J. Intl
L. 196, 204 (2003). The more reportorial IHL literature also predicts such transmission.
See Sean D. Murphy, Progress and Jurisprudence of the International Criminal Tribunal
for the Former Yugoslavia, 93 Am. J. Intl L. 1, 95 (1999) (the decisions of the ICTY
will affect the future work of the ICTY, the ICTR, the permanent international criminal
court, and national courts and tribunals when deciding cases in this area.).
27 Catharine A. MacKinnon, Womens September 11th: Rethinking the International
Law of Conict, 47 Harv. Intl L.J. 1, 31 (2006).

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IHL, for instance, others responded that a very narrow defense of consent
should be retained because the resulting rule would be more relevant as a
precedentto other armed conict situations and to peacetime.28 By the
time any such rules are adopted domestically, nding feminist ngerprints
on them will be difcult. Indeed, calling them feminist will probably seem
(depending on where you stand) hubristic or paranoid. A new conception of
feminism in power seems necessary if we are to be able to make these
possibilities politically intelligible.
Chantal Thomas
Any account of Governance Feminism (GF) rst and foremost requires, to my mind, celebration of a social movement. Against very steep
odds of governmental indifference and patriarchal hostility, feminism is
succeeding in achieving recognition of and response to social justice claims
on behalf of women everywhere. The feminist movement has proven truly
international, and as such stands as an exemplar of the potential for global
governance. Global governance describes contemporary lawmaking as
the product of deep and sustained interaction between states, international
organizations, and non-governmental associations. Lawmaking in this
mode is characterized by substantial communication in networked form
across national borders: networks among governmental sub-units, and networks among NGOs. Global governance is also characterized by ongoing
communication between ofcial actors (states and international organizations) and NGOs, in which the latter act as sources of information, guides
for agenda-setting, and levers of political pressure.
My discussion of GF as global governance proceeds as follows:
rst, I will describe the theoretical and policy perspectives of feminists in
the sex trafcking context. Feminist interventions in this discourse roughly
divide into opposing approaches to the relationship between prostitution
and trafcking: structuralist or radical approaches that endorse an abolitionist approach to prostitution, conceptualizing all prostitution as a form
of modern-day slavery and therefore as the consequence of trafcking;
and individualist or liberal/libertarian approaches that contemplate the
possibility that some prostitution is consensual and therefore not slavery
and not the result of trafcking, and consequently that are amenable to
greater decriminalization or legalization.
Second, I will describe GF as it has operated in anti-trafcking law
in the United Nations and in the United States, with particular attention
to the denitional question of the meaning of sex trafcking and the doctrinal relationship between trafcking and prostitution. I will describe the
processes that led to the establishment of laws against sex trafcking in
28 Jennifer Green, et al., Affecting the Rules for the Prosecution of Rape, 5 Hastings
L.J. 171, 219 (1994).

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international law and U.S. law: The 2000 United Nations Trafcking
Protocol29 and the 2000 U.S. Victims of Trafcking and Violence Protection Act (VTVPA).30 These were parallel efforts, driven by actors who
shared similar concerns.31 Both the international and U.S. regimes exercise inuence in other national context in a variety of ways, as the Sections below by Shamir and Kotiswaran indicate.
I. Governance Feminism and Sex Trafcking
Feminist involvement in the law and policy against sex trafcking importantly reects the ascendance of what Halley calls GF: that is, feminism that seeks not only to analyze and critique the problem, but to devise,
pursue and achieve reform to address the problem in the real world. Both
domestically and internationally, many feminist organizations have devoted extraordinary effort toward shaping the text and the enforcement of
29 The United Nations Protocol to Prevent, Suppress and Punish Trafcking Against
Persons denes trafcking in the following way:

(a) Trafcking in persons shall mean 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 benets
to achieve the consent of a person having control over another person, for the
purpose of 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; (b) The consent of a victim of trafcking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of
the means set forth in subparagraph (a) have been used.
2001 Trafcking Protocol, supra note 2, Annex II, I, Art. 3(a), at 32.
30 The United States denition of trafcking also highlights sex trafcking; it makes illegal severe forms of trafcking in persons, which is dened to include: (A) sex trafcking
in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or (B) the recruitment,
harboring, transportation, provision, or obtaining of a person for labor or services, through
the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude,
peonage, debt bondage, or slavery. Victims of Trafcking and Violence Protection Act,
supra note 3, 106. See also Ofce of the Under Secy for Global Affairs, U.S.
Dept of State, Publn No. 11252, Trafcking in Persons Report, June 2005, at 1
(2005), available at http://www.state.gov/documents/organization/47255.pdf [hereinafter
U.S. Dept of State, Trafcking in Persons Report] (In this modern form of slavery,
known as trafcking in persons, trafckers use threats, intimidation and violence to force
victims to engage in sex acts or to labor under conditions comparable to slavery for the trafckers nancial gain.).
The majority of people deemed to t within the denition are actually in sex trafcking.
Id. at 6 (stating that the majority of trafcking victims are involved in the sex trade). Thus
the emphasis within the denition and within the surrounding discourse appear to be justied
by the databut, I will argue below, this may be less a function of accuracy than of the
consistency of a conceptual aw.
31 Barbara Stolz, Educating Policy-Makers and Setting the Criminal Justice PolicyMaking Agenda: Interest Groups and the Victims of Trafcking and Violence Act of 2000,
5 Crim. Just. 407, 413 (2005).

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international law criminalizing trafcking in persons in general and sex


trafcking in particular.
With respect to sex trafcking, the central denitional question is the
relationship between prostitution and trafcking, and the relative signicance of consent versus coercion in determining a womans participation
in prostitution. Is all prostitution necessarily coercive and a form of trafcking, or is it possible for a woman to meaningfully consent to being a prostitute?
In the debate and discourse on sex trafcking, contenders for inuence fall into two broad camps in their approaches to understanding the
problem of sex trafcking and to dening the legal response to it.32
Structuralist NGOs argued that prostitution necessarily constitutes
a form of trafcking because it necessarily reproduces and enforces subordination of women by men. Womens engagement in prostitution manifests this dynamic of sexual subordination at its very core, reecting and
reproducing underlying larger conditions of domination.
These NGOs drew mainly from radical or dominance feminist
theory pioneered by Catharine A. MacKinnon,33 Andrea Dworkin,34 and
Kathleen Barry.35 Indeed, Barry co-founded one of the most inuential
NGOs at the Protocol negotiations, the Coalition Against Trafcking of
Women (CATW).
In Prostitution and Civil Rights, MacKinnon developed this argument to
show that prostitution was a stark manifestation, and one culmination, of a
structure that bends women at every turn toward and into sexual subservience:
Women are prostituted precisely in order to be degraded and subjected to cruel and brutal treatment without human limits; it is
the opportunity to do this that is exchanged when women are
bought and sold for sex. . . . [L]iberty for men . . . includes liberal
access to women, including prostituted ones. So while, for men,
liberty entails that women be prostituted, for women, prostitution entails loss of all that liberty means.36

32 Chantal Thomas, International Law Against Sex-Trafcking, In Perspective, Presentation at the Wisconsin-Harvard Workshop on International Economic Law and Transnational Regulation 53 (2004) (manuscript on le with author).
33 See Catharine A. MacKinnon, Feminism, Marxism, Method and the State: Toward
Feminist Jurisprudence, 8 Signs 635, 635 (1983) (Male and female are created through
the erotization of dominance and submission.).
34 See, e.g., Andrea Dworkin, Pornography: Men Possessing Women (1989); Andrea Dworkin, Intercourse (1991).
35 See, e.g., Kathleen Barry, Female Sexual Slavery (1979); Kathleen Barry,
The Prostitution of Sexuality (1995).
36 MacKinnon, Prostitution and Civil Rights, supra note 7, at 1314.

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In her 1979 book Female Sexual Slavery, Kathleen Barry did much
to carry this view to the international plane, to raise international awareness of the harmful effects of prostitution, and to revive the conception of
it, popular in earlier eras, as a form of slavery. Barry documented physical and psychological abuse, domination and deception of prostituted women
and girls in a series of countries in Latin America and Africa, showing how
many of these situations t the most rudimentary denition of slavery.37
Barry, like many others working in this area, saw her task as naming and
exposing the pervasive and fundamental nature of female domination,
and thereby striking the rst blow toward freedom.
Individualist NGOs were unied by a concern that the approach to
trafcking preserve the visibility of the person as an individual. An emphasis on the primacy and importance of the individual translated into a
call for an establishment of a framework of individual rights of trafcked
persons. Accordingly, human rights organizations formed a central voice
in the individualist camp. The Human Rights Caucus, a coalition of rights
organizations, became a steady and important player in the negotiation of
the Protocol. The International Human Rights Law Group, or IHRLG (now
known as Global Rights), formed one of the anchors of the Human Rights
Caucus. For the IHRLG, a primary concern was to ensure that the Protocol recognize the importance of protecting the human rights of the
trafcked persons.38 Thus, the IHRLG, the Global Alliance Against Trafc
in Women (GAATW), and other participants in the Human Rights Caucus
called for language in the Protocol explicitly endorsing the protection of
the human rights of trafcked persons.39
In addition to calling for recognition of human rights, the individualist camp strongly opposed a denition of trafcking that failed to recognize
the possibility of individual choice. To fail to recognize choice would be
to obscure the primacy of the individual behind larger, structural concerns
an untenable position from the human rights perspective. The individualist NGOs were able to form coalitions with the participating governments
that did not, within their own territories, aim for complete criminalization or
abolition of prostitution.

37

Barry, Female Sexual Slavery, supra note 35, at 14.


See Intl Human Rights Law Group, The Annotated Guide to the Complete
UN Trafcking Protocol 2 (2002) [hereinafter IHRLG Guide] (The Trafcking Protocol is not, unfortunately, a human rights instrument. The UN Crime Commission, which
developed the Trafcking Protocol, is a law enforcement body, not a human rights body . . . .
From the human rights perspective, it would have been preferable if an international instrument on trafcking had been created within a human rights body rather than in a law
enforcement body.)
39 They were partially successful, although the language on human rights is aspirational,
in contrast to the much stronger language relating to criminalization of trafcking. Compare Trafcking Protocol, supra note 2, at Art. 5 (on criminalization); id. Art. 6 (on protection of and assistance for victims).
38

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Somewhat less visible and inuential at the level of the negotiations,


but still very much visible in the larger discourse around trafcking, was
the pro-work view. This view proceeded from a view that prostitution,
far from being the endpoint of a structure of degradation of women, was
simply a form of wage labor. One justication for this view is the notion
that anti-prostitution feminists simply re-inscribe the victimization of
women by buying into the idea of prostitution as a form of degradation.
Rather than seeing it this way, the pro-work view would seek to dismantle
all the ways in which women are placed apart from men, by resisting the
impulse to see kinds of work in which women are predominant as special
for that reason. By seeing prostitution as simply another form of work,
this view sought to emphasize the agency of the individual prostitute as
someone who could choose to enter into this form of work, and for whom
this work was not horribly degrading. Some within this pro-work camp
would even see prostitution as a potentially liberating act, in which the
woman casts off the shackles of patriarchy that would see prostitution as
degrading, and nally takes control of her own body. Within the larger discourse, the pro-work view drives the call for decriminalization of prostitution. Examples of sex workers rights organizations are the Prostitutes
Education Network (PEN) and the China-based Zi Teng.40
Competing regulatory approaches to prostitution, and by extension
sex trafcking, emerged from the feminist debatedecriminalization and
abolitionism. Individualists called for a denition of sex trafcking that
explicitly described it as commercial sex involving coercion. Such a denition implied that commercial sex could potentially be uncoerced, leaving
room for a decriminalized, individualist approach to regulation. Structuralists called for a denition that included all commercial sex automatically
within the ambit of sex trafckingan explicit nding of coercion would
not be necessary since, according to the structuralist approach, all commercial sex was necessarily coercive. The structuralist proposal also called for
an explicit statement disregarding any manifestation of apparent consent
by the trafcking victim. Just as one cannot legally consent to ones own
enslavement, consent could not be a basis for validating commercial sex
since it was female sexual slavery. In doing so, structuralists call for the
abolition of prostitution so that all third party involvement is criminalized (pimps and johns), while the prostitutes act of prostitution itself is
not criminalized. Both positions are united regarding the need to combat
coerced sex work and coerced migration for the purpose of sex work (trafcking).

40 See also infra the analyses by Hila Shamir and Prabha Kotiswaran of similar movements in specic national contexts.

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II. Governance Feminism and Sex Trafcking in the


United Nations and United States Contexts
The outcomes of a quarter-century of mobilization by feminist NGOs
depended on many dynamics: rst, existing principles in international law
that could become a basis for activism (such as the 1949 U.N. Convention for the Suppression of the Trafc in Persons and of the Exploitation
of the Prostitution of Others); second, the willingness of ofcial actors
(states and international organizations) to receive and act on the information provided by the NGOs (in the international sphere, this point of receptivity was the Working Group on Slavery, and in the national sphere, it
was the Clinton Administration as advised by Hillary Clinton); and third,
the ability of these groups to link up with other actors to increase their
effectiveness (in the international sphere, these actors were governments
that sought to combat transnational crime and to secure their borders against
transnational crime and illegal migrants; in the national sphere, these goals
of the U.S. government were a factor, and religious groups were another
important factor). Part of the current project is to urge a greater awareness
of these factors, both contingent and structural.
A. The International Stage
Twenty-ve years ago, it was possible to state with certainty that the
international human rights framework did not recognize that womens
rights are human rights.41 The U.N. Economic and Social Council was not
authorizedthat is, not instructed by the General Assemblyto address
womens rights until the early 1980s.42 An initial turning point was the
declaration of the 1980s as the Decade for Women. The Beijing Conference for Women and the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) followed, as milestones at moving womens rights to the center of the U.N. agenda. This movement could
not have occurred without tireless efforts by NGOs.
The story of the treatment of sex trafcking cannot be understood without reference to the larger womens movement and human rights move-ment.
These movements provided both the language and theoretical grounding for
action, as well as the source of organizational energy. The indifference to
womens rights was felt to be particularly acute with respect to the prostitution of women and the fact that prostitution could occur under highly coercive circumstances.

41 Fran P. Hosken, Toward a Denition of Womens Human Rights, 3 Hum. Rts. Q. 1, 1


(1981) ([W]omens rights in international human rights are almost invisible.).
42 Margaret E. Galey, International Enforcement of Womens Rights, 6 Hum. Rts. Q.
463, 463 (1984).

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Barry documented the widespread abuses that occurred in prostitution in Latin America and Africa. In a 1981 article entitled Female Sexual Slavery: Understanding the International Dimensions of Womens
Oppression, she described the burgeoning efforts of the feminist movement, and particularly of radical feminists who viewed prostitution through
a structural theoretical lens. Barrys account of feminist mobilizing is a
compelling account of activist determination:
At the 1980 conference in Copenhagen, in the nongovernmental
forum, hundreds of feminists from around the world met to discuss this issue which some ofcial delegates began the work of trying to bring forth a resolution to include the issue in the World
Plan of Action. The move for a resolution was reinforced by
women from the forum lobbying their ofcial delegates. This effort resulted in ofcial adoption of a resolution which asks the Secretary-General of the United Nations to report to the next session
of the General Assembly on the trafc of women and to take action against international networks of trafckers and procurers.
This international attention to female sexual slavery will now enable channels to be opened which will provide an opportunity for
women to report crimes and seek remedies.43
Gradually, the issue began to be incorporated in conferences on
womens issues and preparatory sessions.44 Kathryn Zoglin points out that
this effort largely originated in the global North and largely focused on
the global South.45 This pattern arose probably not because of any conscious imperialist bias46Barry was as outraged by prostitution in Paris
as in Nairobi47but because the South, accessible through the language
of international human rights law, presented a theater of opportunity at a
time when the radical feminist project in the North was embattled by opposition from the status quo as well as liberal and libertarian feminists.48
43 Kathleen Barry, Female Sexual Slavery: Understanding the International Dimensions of Womens Oppression, 3 Hum. Rts. Q. 44, 4445 (1981); see also generally Cynthia Enloe, Bananas, Beaches and BasesMaking Feminist Sense of International Politics (1990).
44 See Kathryn Zoglin, United Nations Action Against Slavery: A Critical Evaluation,
8 Hum. Rts. Q. 306 (1986).
45 Id. at 315 (The signicant impetus provided by the NGOs has come from largely
Western organizations. In contrast, the majority of topics under consideration has focused
on slavery-like practices in the Third World.).
46 There is, of course, a strong tradition of postcolonial critique of latent imperialist
bias within international human rights law. See, e.g., Ratna Kapur, The Tragedy of Victimization Rhetoric: Resurrecting the Native Subject in International/Post-Colonial Feminist
Legal Politics, 15 Harv. Hum. Rts. J. 1 (2002); Makau Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 Harv. IntL L.J. 201 (2001).
47 Barry, supra note 43, at 44.
48 In addition to the resistance on behalf of the status quo, the U.S.-based structuralist
movement met with opposition not only from traditional liberal groups but also from the

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In the international frame, this kind of opposition was initially much less
forthcoming. In part, this may have been because the issue was so marginal. The womens human rights movement was as yet inchoate, and no
internal frontier of opposition had formed. Moreover, the U.N. body charged
with responsibility for eradicating slaverythe Working Group on Slaverywas at the bottom of the UN human rights hierarchy and likely
fairly unthreatening to the status quo.49
Thus, relatively early on, radical feminists were able to achieve victory in terms of bare recognition and framing of the issuea 1981 U.N.
Conference in Nice released the statement that all prostitution is forced
prostitution.50 The initial wave of information and argumentation was not
followed by any immediate impact on U.N. or state behavior. Thus, Barry
lamented, it is not that international authorities do not know about these
practices which violate the human rights of women, but that they refuse
to act against those violations or expose them.51
However, the groups were buttressed by an important source of international lawthe 1949 U.N. Convention for the Suppression of the Trafc in Persons and the Exploitation of the Prostitution of Others. Article 1
of the 1949 Convention requires member states to punish any person
who, to gratify the passions of another: (1) procures, entices or leads away,
for purposes of prostitution, another person, even with the consent of that
person or (2) exploits the prostitution of another person, even with the
consent of that person.52 The language of the 1949 Convention harkens
back to another era, the turn from the nineteenth to the twentieth century
during which social panic about the white slave trade53 ran high and the
seduction of women was a crime in and of itself.54 These features of the
1949 Convention would seem to contradict the self-conception of radical
feminists. Nevertheless, although it might have used questionable language, the 1949 Convention reached the right conclusion: it made prostitution illegal regardless of any showing of consent by the prostituted person.

alternative radicalism of sex-positive or libertarian groups like COYOTE. A debate raged


within U.S. feminism throughout this whole period over questions like whether pornography and prostitution were tolerable from a feminist perspective. See, e.g., Anne McClintock,
Sex Workers and Sex Work: Introduction, 37 Social Text 1 (1993).
49 Zoglin, supra note 44, at 328.
50 Report of the Special Rapporteur on the Suppression of the Trafc in Persons and
the Exploitation of the Prostitution of Others, U.N. Doc. E/1983/7 and Corr. 12 at 8 (1983).
51 Barry, supra note 43, at 44.
52 The 1949 Convention thus sees all prostitution as trafcking and all trafcking as
prostitution, leaving room neither for prostitution that is not a form of trafcking, nor for
trafcking that does not involve prostitution.
53 See International Convention for the Suppression of White Slave Trafc, May 4,
1910, 3 L.N.T.S. 278.
54 See Pamela Haag, Consent: Sexual Rights and the Transformation of
American Liberalism 4353 (1999) (discussing the law of seduction and the seduction trials
of the late nineteenth century).

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In addition to the 1949 Convention, the U.N. also provided an organizational opportunity to mobilize and to press their causethe U.N. Working Group on Slavery. Accounts of the U.N. Working Group agree that it
was uniquely open to NGO input during this period. To begin with, the
Working Group was a forum for action on womens rights issues at a time
when most other U.N. bodies were indifferent to the idea. The mandate
of the Working Group was noticeably open-ended, creating the opportunity for creative interpretation.55 The Working Group also featured an
unusual level of procedural exibility: any NGO with consultative status
could submit written materials to it and could appear before it.56 CATW
and many other abolitionist NGOs, together with Anti-Slavery International, consistently attended the Working Group sessions throughout the
1980s and 1990s.57 Thus, NGOs exerted in the Working Group stronger
inuence than [in] almost any other comparable human rights body.58
The U.N. Working Group requested an annual report by the Secretary-General on the number of ratications of the 1949 Convention and
sought to establish a Special Rapporteur.59 Thus, the movement had succeeded in making the issue visible and putting it on the agenda of ofcial
actors.60 It was stalled, however, by the fact that many governments did
not want to ratify the 1949 Convention because the prohibitionist stance
would have required them to alter their domestic legal systems.61

55 Zoglin, supra note 44, at 317 (the mandate, to review developments in the eld of
slavery, is neither narrow nor excessively well-dened. Thus the Working Group has
always enjoyed considerable scope for action.).
56 Id. at 319.
57 Among the many other groups participating were the International Abolitionist Federation and the International Federation of Women Lawyers. See, e.g., Report of the Working Group on Slavery on the Meeting of its Eighth Session, U.N. Doc. E/CN.4/Sub.2/1982/21
(1982).
58 Zoglin, supra note 44, at 321. There were some critiques of this openness. For instance, because direct testimony was rare and indirect information of a kind rejected by
other human rights fact-nding bodies was routinely submitted, some said the data received was imprecise. Id. at 321, 327.
59 E.g., The Secretary-General, Inquiry on the Status of Combating of the Trafc in
Persons and of the Exploitation of the Prostitution of Others, U.N. Doc. E/CN.4/Sub.2/AC.2/
1982/13 (1982); Note by Mr. Asbjorn Eide, Special Rapporteur of the UN Economic and
Social Council, U.N. Doc. E/CN.4/Sub.2/AC.2/1988/5 (1988).
60 In 1995 these efforts culminated in the establishment of a Programme of Action. Report of the Working Group on Contemporary Forms of Slavery on its Twentieth Session: Draft
Programme of Action on the Trafc in Persons and the Exploitation of the Prostitution of
Others, U.N. Doc. E/CN.4/Sub.2/1995/28/Add.1 (June 13, 1995). NGOs communications
to the Working Group made clear that they were concerned not only about the low number
of ratications of the 1949 Convention, but also about the fact that the Convention did not
include any mechanism for monitoring and implementation. Various NGOs proposed the
development of such mechanisms to strengthen the 1949 Convention. See, e.g., Report of
the Working Group on Contemporary Forms of Slavery on its Twenty-Second Session, U.N.
Doc. E/CN.4/Sub.2/1997/13, 21, 22 (July 11, 1997).
61 See, e.g., Remarks of the United Kingdom, Report of the Working Group on Contemporary Forms of Slavery on its Twenty-First Session, U.N. Doc. E/CN.4/Sub.2/1996/24
(July 19, 1996).

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It was not until intergovernmental talks began to establish a Convention on Transnational Organized Crime that trafcking would be made more
central to international crime-ghting efforts of ofcial actors.62
B. The United States Stage
The original impetus to establish a Convention on Transnational Organized Crime came out of a joint effort by the U.S. and European governments when they were cooperating on other fronts to combat moneylaundering and drug trafcking. The Clinton Administration made transnational organized crime a priority.63 Within that, combating illegal immigration was a big objective. The issue of sex trafcking appears to have
been incorporated into these intergovernmental efforts after Hillary Clinton attended the Beijing Womens Conference and met with NGOs such
as the Global Survival Network.64 Coupled with the awareness of trafcking
that had already developed among White House staff during the 1990s,
Hillary Clintons involvement led to the establishment of the Presidents
Interagency Council on Women (PICW) with Secretary of State Madeleine
Albright as its chair and Hillary Clinton herself as honorary co-chair.65 The
PICW mobilized to place trafcking on the agenda of the emerging intergovernmental initiative to establish an international convention to strengthen
efforts to combat crime and illegal migration.
The Clinton Administrations perspective was decidedly liberal.66 As
weve seen, this view conceptualized prostitution and trafcking as distinct;
envisioned the possibility of noncoerced prostitution; it also emphasized
the centrality of human rights. Conceptually, these positions were of a
piece. The idea of human rights privileged the classical liberal individual,
and this necessitated the idea of the right to choose. It also necessitated the
possibility of a defense for the defendant under liberal conceptions of criminal justice. Within this framework, punishment of trafcking would proceed according to a familiar process of balancing competing rights in a
liberal-legal frame.
In setting this agenda, PICW faced opposition from feminist groups
that wanted prostitution to be made illegal. National Organization for
Women (NOW) and the Planned Parenthood Federation of America both
protested the Clinton Administrations effort to weaken international laws
62 U.N. G.A. Res. 53/111, U.N. Doc. A/RES/53/111 (Dec. 9, 1998) and G.A. Res. 53/114,
U.N. Doc. A/RES/53/114 (Dec. 9, 1998). The move for implementation machinery in the
Working Group may have been in anticipation of this event.
63 The Threat to US Trade and Finance from Drug Trafcking and International Organized Crime: Hearings Before the Senate Caucus on International Narcotics Control,
Senate Finance Committee Subcommittee on Trade, 104th Congress (1996) (testimony of
Deputy Assistant Secretary Winer).
64 Stolz, supra note 31, at 413.
65 Id. at 413.
66 Id. at 415.

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against the trafcking of women and children for prostitution.67 These


groups, in other words, allied with their international counterparts active
in the U.N. Working Group on Slavery in calling for the reinforcement of
the abolitionist approach of the 1949 Convention. Indeed, CATW was visible in the domestic as well as international area.68
These domestic feminist organizations also allied with conservative
and religious organizations: the Heritage Foundation, the Campus Crusade
for Christ, the Ethics and Religious Liberty Commission, the Institute on
Religion and Democracy, and others.69 The abolitionist feminist NGOs and
these religious organizations generated noticeable publicity criticizing
the Clinton Administrations liberal position.70 The New York Post dubbed
the PICW a Hooker Panel; the Wall Street Journal accused the Clintons of shrugging at sex trafcking.71
Despite this erce criticism, the Clinton Administrations position
held fast. This was probably due to several factors. First, the liberal approach was the more pragmatic one from the perspective of securing widespread intergovernmental agreement, since it was more consistent with a
wider range of legal regimes. Second, the liberal approach found support
in another and more prestigious branch of U.N. human rights machinery,
the U.N. High Commissioner for Human Rights. Commissioner Mary Robinson had appointed a Special Rapporteur on Violence Against Women, who
had carefully endorsed a human rights position that recognized the possibility of non-coercive prostitution and the denitional centrality of consent.72 Although opposed by those NGOs most active in the U.N. Working
Group on Slavery,73 the UNHCHRs liberal, pro-human rights position,
reected also in the position of U.S. groups such as the IHRLG, ultimately
reinforced the approach of the PICW and the Clinton Administration.
67

Id. at 418.
Id.
69 Id. (Religious conservatives Richard Land, Ethics and Religious Liberty Commission; Bill Bright, Campus Crusade for Christ; Mary Ann Glendon, Harvard University law
professor; Kay Cole James, Heritage Foundation; and Diane Knippers, Institute on Religion and Democracy sent a letter articulating their concerns about the protocol and prostitution to Hillary Clinton, as co-chair of PICW.).
70 Brian Blomquist, Hooker Panel Puts First Lady on the Spot, N.Y. Post, Jan. 8, 2000.
71 William J. Bennett & Charles W. Colson, The Clintons Shrug at Sex Trafcking, Wall
St. J., Jan. 10, 2000.
72 Radhika Coomaraswamy, Integration of the Human Rights of Women and the Gender
Perspective: Report Of The Special Rapporteur On Violence Against Women, Its Causes
And Consequences, 1217, U.N. Doc. E/CN.4/2000/68 (Feb. 29, 2000).
73 Report of the Working Group on Contemporary Forms of Slavery on its Twenty-Fifth
Session, 84, 85, U.N. Doc. E/CN.4/Sub.2/2000/23 (July 21, 2000) (Speakers . . . expressed their anxiety at the content of the report submitted by the Special Rapporteur on violence against women to the fty-sixth session of the Commission on Human Rights. They
claimed that the report dealt only with trafcking based solely on coercion, that it criticized the 1949 Convention for the Suppression of the Trafc in Persons and of the Exploitation of the Prostitution of Others and that it assimilated prostitution to work. Above all,
the attention of the Working Group was drawn to the fact that the report placed consent at
the heart of the denition of trafc.).
68

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C. The Outcomes and the Aftermath


Ultimately the Clinton Administrations liberal view prevailed in the
VTVPA, which contained a narrower denition of trafcking than that in
the Trafcking Protocol.
Despite the inuence and practicality of the liberal approach in the
Protocol negotiations, structuralist NGOs were able to counter and limit the
inuence of the liberal view. This is undoubtedly due to their preexisting
inuence with the Working Group on Slavery and their experience with
the U.N. framework. The denitional debate played out around the scope
of the actions that constituted trafcking and the question whether consent could be a defense or not. Ultimately, both liberal and abolitionist approaches made their imprints visible in the nal denition. That denition
reads as follows:
Art. 3. (a): Trafcking in persons shall mean 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 benets to achieve the consent of a person having control over another
person, for the purpose of 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;
(b): The consent of a victim of trafcking in persons to the intended exploitation set forth in subparagraph (a) of this article shall
be irrelevant where any of the means set forth in subparagraph
(a) have been used.
The Trafcking Protocols denition of the crime of trafcking can be
compared with that in the United States. VTVPA, which criminalizes only
severe forms of trafcking:
SEVERE FORMS OF TRAFFICKING IN PERSONS.The term
severe forms of trafcking in persons means
(A) sex trafcking in which a commercial sex act is induced by
force, fraud, or coercion,74 or in which the person induced to perform such act has not attained 18 years of age; or
74

COERCION.The term coercion means


(A) threats of serious harm to or physical restraint against any person;
(B) any scheme, plan, or pattern intended to cause a person to believe that failure
to perform an act would result in serious harm to or physical restraint against any
person; or

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(B) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force,
fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.75
The inuence of the abolitionist position at the international level can be
deduced by contrasting the U.N. and the U.S. denitions. First, the U.N.
denition is broader, criminalizing not only those acts named in the U.S.
law, but also the abuse of power or of a position of vulnerability or of giving or receiving of payments or benets to achieve the consent of a person having control over another person.76 This addition afrms the structuralist belief that womens personal relationships and other circumstances
may give rise to fully coercive dynamics. Second, the U.N. denition includes a subparagraph which establishes that consent of a victim of trafcking in persons to the intended exploitation set forth in subparagraph
(a) of this article shall be irrelevant.77 Here, a central structuralist feminist tenet is written into law.
The sub-paragraph on consent should not, however, be confused with
the all-encompassing position of the 1949 U.N. Convention. The Protocols travaux prparatoires make clear that the Protocol was without prejudice to national legal systems on prostitution.78 Liberal NGOs have made
this clear as well. For example, in 2002 IHRLG (now Global Rights) published an Annotated Guide to the Protocol explaining that this provision merely restated the logic that once the elements of the crime of
trafcking are proven, any allegation that the trafcked persons consented is irrelevant.79 The Annotated Guide carefully distinguished between the Protocols denition and the Conventions, pointing out that under
the Protocols denition prostitution could occur without being a form of
trafcking: For example, a woman can consent to migrate to work in prostitution in a particular city, at a particular brothel, for a certain sum of
money. However, if the defendant intended actually to hold the woman in
forced or coerced sex work, then there is no consent because everything
the defendant trafcker told the woman is a lie.80
Though the abolitionist movement conceded major denitional territory in 2000, their point of view would soon become ascendant. The Administration of George W. Bush, who succeeded Clinton, has taken the pro(C) the abuse or threatened abuse of the legal process.
75

Victims of Trafcking and Violence Protection Act, supra note 3.


2001 Protocol, supra note 2, Art. 3(a).
77 Id. Art. 3(b).
78 See Interpretative Notes for the Ofcial Record of the Negotiation of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto, 64,
Travaux Prparatoire, U.N. Doc. A/55/383/Add.1 (Nov. 3, 2000).
79 IHRLG Guide, supra note , at 7.
80 Id.
76

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hibitionist view. The Bush Administration devoted increased resources to


the elements of the VTVPA that placed trafcking on the U.S. governments
foreign policy agenda, such as the requirement of the State Department
to submit Annual Reports monitoring the anti-trafcking efforts of foreign governments who received U.S. aid. In doing so, they were primarily inuenced by religious groups, who had overtaken feminists in their
inuence in the current Administration.81 The Administration also added restrictions to funding based on whether a recipient state legalizes prostitution82a victory for the structuralist feminists that was in turn decried by
the liberal/human rights feminists.83
In both contexts, feminist NGOs worked with existing opportunities.
An important part of their function was providing information to, and a
big part of their power was in setting the agenda for, ofcial actors in lawmaking initiatives. Both liberal and structuralist feminists worked with
non-feminist groups and interests to obtain their goals. For the liberal feminists, their ultimate relative victory in the VTVPA was made possible by
the fact that their position did not threaten existing approaches to prostitution. When the Administration changed parties, the relative shift to the
structuralist point of view was made possible by the intense support from
the religious right.
Hila Shamir
For me, mapping feminisms governance mode and its consequences
is both a delightful and an unsettling task. It is delightful because it focuses on the power that feminists, of various stripes, have gained and are
gaining in international and national settings. As a feminist I am happy to
see feminism desiring power and achieving actual power; I believe this
power, wherever it appears, has the potential to better the life of women. In
the contexts discussed in this Article, and in many other contexts, feminists insist and succeed in making the interests of women heard and in
inuencing policy decisions. Thus, for me, the term Governance Feminism (GF) is normatively empty: it signies a certain form of power
which in itself is not necessarily bad, but the fact that it is feminist does
not make it necessarily good either. I see no inherent problem with femi-

81 Elizabeth Bumiller, Evangelicals Sway White House on Human Rights Issues Abroad,
N.Y. Times, Oct. 26, 2003, at A1.
82 See TVPA Reauthorization Act of 2003, H.R. 2620, 108th Cong. 7 (2003) (providing that no funds authorized for anti-trafcking purposes can be used to promote, support or advocate the legalization or practice of prostitution; and requiring organizations that
apply for anti-trafcking funding to state in their grant documentation that they do not promote, support, or advocate same).
83 See Letter from the AIDS Law Project, Centre for Applied Legal Studies, Wits University et al., to George W. Bush, President, United States of America (May 18, 2005), available at http://www.iwhc.org/document.cfm?documentID=231.

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nist power, and I am pleased to see feminists among the elites making
feminist decisions.
But this mapping is also unsettling. Through my research I came to
realize that the current form of GF tends to deny its own power, and consequently systematically overlooks the shifts in bargaining power, distributive consequences, and production of winners and losers yielded by
feminist legislative reforms. This internal critique of feminism draws on
insights from new legal realism. The legal realist tools are helpful in mapping the distributive consequences (losses and gains) of proposed and implemented policies and in developing more consequence-conscious feminist
reforms.
In this Part, I will focus on how feminists operate in governance mode,
and how they came to inhabit this mode, by providing a snapshot of their
institutional operation in the regulation of sex work and sex trafcking in
national contextsmainly that of Israel. In my answer to the second question, I will focus on what feminists are doing with this gained power in
Israel, the Netherlands, and Sweden.
Feminism has proved to be a powerful actor in regulating sex work
and combating trafcking in human beings for the purpose of sex work.
This is true, as Thomas suggests above, on an international level, but is
also the case in many national contexts. My research looks at the feminist
legal regimes of sex work and trafcking that developed in the Netherlands, Sweden, and Israel, where the phenomenon of trafcking increased at
the end of the Cold War, changing the sex industries of these countries
dramatically, and leading to reforms in their regulation.
The end of the Cold War opened new routes of trade and migration
between the former Soviet Union and the west.84 The struggling economies of the former Soviet Union and the promise of the rich west led to
increased trade and migration, thereby creating new prospects gainful
employment in unskilled labor upon migration. The established formal
routes of trade and migration were accompanied by the development of
informal shadow markets of cross border trade in goods and labor. This
included the development of a market in illegal migration for the purpose
of sex work and sex trafcking. For example, it is estimated that 10,000
women were trafcked or migrated from countries of the former Soviet Union (namely Moldova, Russia, Ukraine) to work in Israels sex industry in
the early 1990s, when transnational crime networks took advantage of the
85
increased migration of soviet Jews to Israel. The legal migration from
the former Soviet Union into Israel created a transnational link between

84 Trade between the east and the west existed during the period of the Cold War despite the (American-led) sanctions but it was limited, disrupted and distorted. See generally East-West Trade and the Cold War (Jari Eloranta & Jari Ojala eds., 2005).
85 Donna M. Hughes, The Natasha Trade: The Transnational Shadow Market of
Trafcking in Women, 53 J. Intl Aff. 625, 632 (2000).

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Eastern European organized crime rings and willing collaborators in Israel.86


This link enabled the creation of a sophisticated apparatus for smuggling
persons and sex trafcking that expanded in the last decade and took over
the Israeli sex industry.87 With the increase of sex trafcking and sex workers migration, feminists entered this zone of post-war, newly established
(formal and informal) trade relationships, seeking to regulate or altogether
abolish sex trafcking and sex workers migration.
Two classic examples of feminist reforms in the regulation of sex
work can be found in the laws of Sweden and the Netherlands. There, the
purest manifestation to date of the feminist legal regimes of abolitionism and legalization can be found. In 1999, buying sex became illegal in
Sweden. In the Netherlands in 2000, the general ban on brothels was lifted,
and it became legal to employ sex workers and manage a sex business.88
Changes in both countries were, in the clearest of ways, the result of
feminist struggles and were shaped by feminist agendas.89 But, as is well
known, GF is not as successful in all national contexts, and not everywhere
is the link between feminism and adopted reforms so straightforward. The
case of Israel might be a more common example of the operation of GF
on the national level.
In Israel, early legislation regarding prostitution was not shaped by
Israeli feminists, and the 2000 Penal Code amendment that criminalized
sex trafcking was legislated in a rush due to American and international
pressures, and therefore without much input from Israeli feminists.90 Although feminists have tried to raise awareness to sex trafcking since
1997,91 the voices of feminist organizations in Israel, in the context of sex
work and sex trafcking, began to be heard only after American feminists
succeeded (as Thomas details above) in inducing the U.S. government to
enact the Victims of Trafcking and Violence Protection Act of 2000
86

Id. at 629.
Apparently this is not unique to Israel. See Saskia Sassen, Is This the Way to Go?
Handling Immigration in a Global Era, 4 Stan. Agora (2003), http://agora.stanford.edu/
agora/volume4 (According to the International Organization for Migration data, the number of migrant women prostitutes in many EU countries is far higher then that for nationals: 75% in Germany, 80% in the case of Milan in Italy, etc.).
88 Bureau NRM, The Hague, Trafcking in Human Beings: Third Report of the Dutch
National Rapporteur 13 (2005).
89 The reforms were done through the cooperation of feminists in power positions in
the state (public ofcials, legislators, and ministers) with feminist NGOs. See Gunilla Ekberg, The Swedish Law that Prohibits the Purchase of Sexual Services, 10 Violence Against
Women, 1187, 119192 (2004); see also Trafcking in Human Beings: Third Report of the
Dutch National Rapporteur, supra note 88, at 12.
90 Penal Code 203A-D (amendment no. 56), 57602000, 1746 S.H. 226 (2000) (Isr.).
One of the signs for the legislative rush to pass the amendment is the fact that during the
legislative process the issue of sex trafcking was hardly researched and was not put in
broader context. Rather, in a knee jerk reaction, trafcking was dened narrowly to include
only trafcking for the purpose of prostitution, leaving wide practices of trafcking in
persons for other purposes legally un-attended.
91 Martina Vandenberg, Israels Womens Network (Shdulat Hanashim), Trafcking of Women into Israel and Forced Prostitution (1997).
87

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(VTVPA). It is safe to assume, more generally, that a changing approach


to trafcking in Israelfrom an ignored topic to an important and dynamic issue on the legislators agenda92is not based on a deep commitment to the dignity of victims of trafcking, or the various relevant U.N.
conventions Israel signed or ratied,93 but rather to the transnational footprint of U.S. law (and U.S. feminists) on the Israeli state.94
To ensure compliance, the VTVPA places a set of nancial sanctions
on countries that do not comply with a certain minimum standard for the
elimination of trafcking. The VTVPA stipulates that a country that receives a non-complying assessment (tier three) risks withholding of nonhumanitarian, non-trade-related foreign assistance.95 In the 2001 report,
Israel was placed in tier three.96 Taking to heart the economic consequences,
the Israeli government began to treat the phenomenon of trafcking more
seriously. The efforts bore fruit: in the 2002 report, Israel was upgraded
to the second tier.97

92 The main landmarks in this process are the following: In 2000 the Israeli legislature
criminalized trafcking in women by amending the Penal Code and adding section 203A-D
(Penal Code 203A-D, supra note 90). Since 2000 the situation of victims of trafcking
who agree to testify as prosecution witnesses has improved and when caught, they were no
longer immediately deported, but were given the option to testify against their trafckers.
Further, several court rulings in 2000 held that prosecution witnesses should not be detained while waiting to testify, and that the police should ensure that the womens basic needs
for food and accommodation are fullled. Following these rulings, the police stopped holding victims of trafcking in prisons and began providing accommodation for witnesses in
hostels, paid by the police. In 2004 a secured shelter for victims of trafcking was established by the Ministry of Welfare. The shelter provides both health care and mental care
for the victims. Since 2004 the Ministry of Interior Affairs provides victims of trafcking
with visas and working permits in exchange for their testimony against the trafckers. See
Entry into Israel Order, Exemption from Need of Approval to Permits for a Foreign Worker (2004) (Isr.). In July 2004 the Minister of Interior participated in a meeting
of the Parliamentary Committee on Trafcking in Women, in which he declared his willingness to extend work permits and visas for one more year after the woman gave her testimony. The protocol of the meeting is available at http://www.knesset.gov.il/protocols/data/
html/sachar/2004-07-06.html (last visited Apr. 25, 2006).
93 Israel signed and ratied the U.N. Convention for the Suppression of Trafcking in
Persons and the Exploitation of the Prostitution of Others, 1949, and the Convention on the
Elimination of all Forms of Discrimination Against Women, 1979; Israel also signed but
did not ratify the most recent and up-to-date international counter-trafcking instrument,
the 2001 U.N. Trafcking Protocol.
94 The VTVPA also had great effect on legislation and policy in sending countries
categorized as tier three in the U.S. State Department Trafcking in Persons Report. See
Alexandra V. Orlova, From Social Dislocation to Human Trafcking, 51(6) Problems of
Post-Communism 14, 2122 (2004); see also Counter Trafcking in Eastern Europe
and Central Asia, IOM research report 8 (2003).
95 Victims of Trafcking and Violence Protection Act, supra note 3, 110.
96 Ofce of the Under Secy for Global Affairs, U.S. Dept of State, Trafcking in Persons Report, at 88 (2001), available at http://www.state.gov/documents/
organization/10815.pdf.
97 Ofce of the Under Secy for Global Affairs, U.S. Dept of State, Trafcking in Persons Report, at 63 (2002), available at http://www.state.gov/documents/
organization/4107.pdf.

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Only when the 2001 U.S. State Departments Victim of Trafcking


report placed Israel in tier three did an Israeli GF element become possible and visible. One aspect of the effort to be promoted within the tiers
was the establishment of a Parliamentary Committee on Trafcking in
Women in 2000 (the committee). The committee was initiated by (feminist) parliament member Zehava Gal-On, who has chaired it since.98 A
special relationship evolved between this committee and feminist organizations. First, invited as experts describing their experience from the eld,
feminists began to be vigorous participants and repeat players in the
committees meetings. They partook in formulating the committees agenda
and in shaping its proposed legislation. Protocols of the meetings reveal
that at times the committee meetings were held mainly in the presence of
the committees chairwoman and the representatives of feminist organizations and NGOs that represent illegal migrant workers.99
The feminist organizations involved in the committee adhere to strong
abolitionist impulses: all can be characterized as structuralists and as inuenced by a form of American radical feminism. The participants in the
committee did not include sex workers organizations, simply since there
are no such organizations in Israel. This is presumably because the majority of sex workers in Israel are victims of trafcking and migrant sex
workers, who for various reasonssuch as their harsh working conditions,
transitory migration, or disempowerment as illegal residentsdid not join
the global trend of sex workers organizations.100 The feminist politics of
the Hotline for Migrant Workersnot a per se feminist organizationare
harder to characterize. This organization deals with a wide range of issues
concerning undocumented migrant workers and includes feminist lawyers
and activists. It can be described as holding a more complex (or pragmatic)
approach to sex work, and in any case has a weaker abolitionist impulse.101
98 The committee handed in its nal report in 2005. It then changed its title to a Permanent Subcommittee (to the Constitution, Law, and Justice Committee) for the War
Against Trade in Human Beings.
99 Repeat feminist players in these meeting are Woman to Woman (Isha Le-Isha), Atzum
Association, Consciousness Institution (Machon Todaa), and Israels womens network
(Shdulat Hanashim). An organization that regularly attends the meetings and represents
other non-state interests is the Hotline for Migrant Workers. Another actor is the Coalition
Against Trafcking in Women, a coalition that includes (or at some point included) all of
these organizations, as well as many other womens and human rights organizations (some
of its members are: the association of legal rights in Israel, Amnesty International, The
Center for Jewish Pluralism, The Center for Victims of Sexual Assaults, and The Movement for New Manliness). The coalition was established in 1997 and until recently acted
mainly as a platform of communication for the various member organizations.
100 For a discussion of the global trend of sex workers organizations, see Kamala Kempadoo, Introduction: Globalizing Sex Workers Rights, in Global Sex Workers: Rights,
Resistance, and Redenition 1 (Kamala Kempadoo & Jo Doezema eds., 1998). For a
discussion of the reasons that inhibit migrant sex workers organization, see Laura Agustin,
Migrants in the Mistresss House: Other Voices in the Trafcking Debate, 12 Soc. Pol. 96,
11011 (2005).
101 See, e.g., Nomi Levenkron & Hani Ben Israel, Report on the Clients of
Women Trafcked in the Israeli Sex Industry 33 (2005) (recommending not to adopt

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But since the Hotline is mainly concerned with the rights of victims of
sex trafcking, and not with general concerns of the harms of prostitution
(that is, it focused its effort around developing protection programs for
victims of trafcking and lobbying for increased prosecution of trafckers),
it often shares the same rhetoric and stances of the structural feminists
from the abolitionist organizations. Accordingly, all the participating NGOs
often appear relatively unied when expressing their opinions and demands
in the committee.
It is primarily in this zonein which direct and unmediated interactions between civil society organizations and the state takes placethat
Israeli feminists shaped their governance mode of operation and engaged
in the regulation of sex work and sex trafcking in Israel.
Beyond operation in governance mode, feminists also used traditional,
non-governance channels of operation; namely, they turned to the courts.
Through litigation, feminists successfully pleaded to interpret generously
the consideration requirement in the trafcking section of the penal code
by lowering the evidentiary level for the proof of consideration to require
circumstantial evidence alone.102 And they successfully petitioned to establish rights for out-of-prison accommodation and police protection for
victims of trafcking who agreed to serve as prosecution witnesses (in the
latter case feminists and NGOs working with migrant workers led amicus
briefs).103 Although petitions to courts played an important strategy in
voicing the feminist perspective, this, I believe, is not a form of GF. While
GF is about feminists joining formal political power apparatuses
cooperating with them and operating within themthe courts serve as a
venue for those who lost the political game or did not have meaningful
access to political processes in the rst place. Moreover, the adjudication
procedure leaves the power in the hands of traditional decision makers
judgeswhere feminists are relatively passive actors.
The involvement of non-state organizations in legislative processes
and policy formation is not exclusive to the issue of trafcking in persons,
though in Israel this might be one of the clearest manifestations of this
growing trend. Furthermore, though feminists became meaningful actors,
it is not clear how much power feminist and other civil society organizathe Swedish regime that criminalizes clients, because of its possible adverse effects on sex
workers).
102 CrimA 1609/03 Borisov v. State of Israel, [2003] 58(1) P.D. 55. Section 203A(a) of
the penal code says: Selling or purchasing of a person in order to engage him in prostitution or serving as a middleman in the selling or purchasing of a person for this purpose is
punishable by a term of imprisonment of 16 years; for the purposes of this paragraph, selling or purchasing includes consideration in the form of money, value, services or any
other interests. Informal translation by attorney Rachel Gershony, legal advisor in the Ministry of Justice, as quoted in Nomi Levenkron et al., National NGOs Report to the
Annual UN Commission on Human Rights: Evaluation of National Authorities
Activities and Actual Facts on the Trafcking in Persons for the Purpose of
Prostitution in Israel 9 (2003).
103 HCJ 1119/01 Zaritskaya v. The Ministry of Interior (unpublished).

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tions manage to exert through such interaction. It is clear that feminists, as


well as other NGOs, have more opportunities to inuence policy and legislation since the discourse of rights and the concept of dignity became more
central in Israeli adjudicationwith the passage of what is known as Israels
partial Bill of Rights, the Basic Law: Freedom of Occupation, and the Basic
Law: Human Dignity and Liberty in 1992and since non-state organizations gained direct access to parliamentary processes around a decade later.
It is also certain that in these political struggles they dont and wont always win.
Although feminist and other NGOs became important actors in the
Parliamentary Committee on Trafcking in Women, the power of the committee itself can be questioned. First, it should be noted that structurally
the powers of such a parliamentary committee are much more limited than
those of Congressional committee in the United States.104 Second, in its
years of operation, the committee proposed and passed several important
rules and legislative amendments,105 but many other proposals failed to
pass.106 Third, even when a proposal was enacted, its implementation by
the executive branch or the judiciary branch is, at times, only partial. One
example is the committees generated Limitation of Use of Property for
the Prevention of Crime Act2005 (where crime is dened as pimping,
sex trafcking, and owning or renting a place for the purpose of prostitution). The act allows the police, after it received a court restriction order,
to shut down a brothel. This legislation was likely unofcially aimed to
circumvent the attorney generals directive, guiding the police not to investigate prostitution-related offences unless there is suspicion of sex trafcking or other aggravated offences.107 Ofcially it was meant to give the
police legal tools to close down brothels so that the police would not be
able to use its lack of legal power to justify its lack of activity.108 The act
passed in March 2005, yet the police report to the committee implies that
104 For the operation of parliamentary Knesset committees, see http://www.knesset.gov.il/
committees/eng/permanent_committees_eng.asp (last visited Apr. 25, 2006).
105 The following rules and amendments proposed by the committee passed: Minimum
punishment for trafckers; at the request of the complainant, victims testimony in trafcking
cases can be conducted when the defendant is not present; in order to allow the complainant to return to her origin country, courts can take early testimony of victims of trafcking
in trafcking cases; territorial expansion of the Israeli law to apply on Israeli citizens who
commit trafcking outside of Israel; and special authority for courts to limit use of property when it is suspected that criminal offences are taking place there, namely in cases of
sex establishments. See Parliamentary Commission on Trafcking in Persons
Final Report Ch. 12, at 23 (2005).
106 Id. at 46.
107 Investigation and Prosecution Policy in Offences of Prostitution and Trafcking in
Persons for the Purpose of Prostitution, 2.2 Atty Gen. (amended 2002) (Isr.), available at
http://www.justice.gov.il/MOJHeb/HanchayotSahar. The directive is expected to be amended
again in 2006. Current drafts of the amended directive do not change this aspect of the
directive.
108 As Knesset member Zehava Gal-On said in the legislation process. See Knesset Protocol 94 (Mar. 30, 2005).

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it was not used once in the four months following its passage.109 As far as
the NGOs are informed, it has been used only once in the year following
its enactment (and then only partially). It therefore seems that feminist
and other NGOs turned into powerful political actors in this new form of
politics, and as such, like all other stakeholders in these struggles, they
win some and they lose some.
One such possible triumph might be the proposal of the Act for The
Prohibition of Trafcking in Persons that passed its rst legislative stage
in November 2005.110 The Parliamentary Committee on Trafcking in
Women and the Constitution Law and Justice Committee jointly drafted
the bill, and feminist organizations commented on it extensively during
its drafting. At least at its current preliminary stage, the proposal looks
like a (structuralist) feminist victory.111 However, the proposed act also
reects an attempt of Israeli authorities to comply with the 2001 Protocol,
which, as Thomas and others112 suggest, is often understood as an international feminist achievement. Israel signed the 2001 Protocol but cannot
ratify it113 until its national legislation is in line with the requirements
laid down by the Protocol. The proposed bill complies with the Protocols requirement of enacting a trafcking prohibition that would include
a broader range of circumstances besides prostitution, namely situations
of forced labor and organ removal. Sweden and the Netherlands both went
through similar processes of widening statutory denitions of trafcking
to comply with the international standard and ratied the Protocol promptly
after passage of new legislation (in July 2004 and July 2005, respectively).
For these three countriesand probably for many othersthe 2001 Protocol did not serve a feminist purpose per se, but a general purpose of recognizing more types of harms (and less gender specic harms) as warranting
national sanction. It seems then that it is mostly the VTVPA, with the power
it endowed certain groups of Israeli feminists, that shaped the measures
taken by the Israeli government against sex trafcking.
I depicted here in detail a specic aspect of the operation of GF at the
national level hoping to exemplify the complexity and indeterminacy of
its operation in this context. Here feminism often works its way into power
through interaction with state actors in a complex and nuanced way and with
109 Protocol of the War Against the Trade in Human Beings Committee (July 13, 2005)
(regarding the implementation of the Limitation of Use of Property for the Prevention of
Crime Act: Meeting of the War Against the Trade in Human Being Comm.).
110 Act for the Prohibition of Trafcking in Persons, Proposal P/1291 (as passed in rst
vote out of three, Nov. 15, 2005).
111 In the denition of trafcking the proposal emphasizes that the victims consent, no
matter when it is received, is irrelevant to a trafcking crime. This was the case at the 2000
penal code amendment as well, but the language and rhetoric of the proposed legislation is
much stronger.
112 Beverly Balos, The Wrong Way to Equality: Privileging Consent in the Trafcking
of Women for Sexual Exploitation, 27 Harv. Womens L.J. 137, 14174 (2004).
113 Ratication might be crucial to ascend another tier in the U.S. State Department Victims of Trafcking Report.

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unpredictable consequences. The success of any particular GF campaign,


at least at this stage in history and research, is far from clear; and, for feminists, the rare victories feminist organizations achieve are still exhilarating. Admittedly, there were some astonishing triumphs of structural feminism in Israel in the last decadenamely Orit Kamirs success in passing
the Act for the Prevention of Sexual Harassment in 1998but these were
and still are considered uncharacteristic and surprising occasions in the history of Israeli feminism. The common characteristics of state-adopted feminist reforms, and the conditions required for a feminist reform proposal
to be successful, are yet to be thoroughly studied.
For me, the institutional story of the operation of GF in this context
is an interesting and important one, but one in which feminism is merely
an example of a general trend of the effect of globalization on national politics, of the increasing role of NGOs in government, and of the changing
structure of sovereign power. What is particular to feminism, and what as
a feminist I nd to be a more important part of the discussion on GF, is
our discussion in Part Twoand particularly GFs tendency to avoid assessment of the consequences of its legal regimes in a pragmatic, distribution-oriented way.
Prabha Kotiswaran
Governance Feminism and the Postcolonial Predicament
In December 1891, two American women, Katherine Bushnell and
Elizabeth Andrew of the World Womens Christian Temperance Union,
visited British military brothels in ten Indian cities. Their experiences
were recorded in The Queens Daughters in India, published in 1899 with
prefatory letters by well-known British abolitionists Josephine Butler and
Henry Wilson. The Contagious Diseases Act of 1868114 had been repealed in
Britain in 1886. Soon after, a dizzying array of actors, including British
feminists, members of the British Parliament, and Indian nationalists, joined
hands in a bid to repeal the statute in India. In 1888 the British House of
Commons passed a resolution requiring its repeal. When Bushnell and
Andrew undertook their extensive travels in 1891, they were testing whether
this formal change in the law had made any difference on the ground. From
talking with British military personnel, medical practitioners, and the
subordinate judiciary, they learned of the continued medical testing of
sex workers under Cantonment laws applicable to areas where British soldiers were stationed.

114 The Contagious Diseases Act of 1868 called for the compulsory registration of all
sex workers and the compulsory examination and treatment of sex workers in lock hospitals set up by the colonial government. Failure to comply with these requirements invited
criminal sanctions including the payment of nes and imprisonment.

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As Bushnell and Andrew relate their own conversations with sex workers, the sex workers reported on their earlier encounter with another Western
woman in the following way:
Then the lady went home to England and talked to the Queen. She
spoke with wonderful power on behalf of the poor women of India.
She said to the Queen that she (the Queen) was a woman, and
these in India were women, and their shame was the Queens
shame, and for them to be outraged as though she (the Queen) was
outraged, that it was a shame for women to be treated so when a
woman was Queen. Then the Queen ordered it to be stopped. But
the ofcers still carry it on . . . . They [the sex workers] blessed
and thanked us over and over. We told them, We are your sisters; they replied, We are your slaves.115
Were Bushnell and Andrew governance feminists (GFeminists)? Is
Governance Feminism (GF), as Halley suggests, an underrecognized but
important fact of governance more generally in the early twenty-rst century? To be sure, there are signicant differences between the current
ascendance of GF in the international legal domain, outlined by Halley and
Thomas, and the feminist interventions that I describe from more than a
century ago. Feminist NGOs in the late nineteenth century were probably
only beginning to intervene in policy-making at the domestic and international levels. Unlike the present-day GF that Halley discusses, their installation in actual legal-institutional power was improbable, as was
the likelihood of their being hired by bureaucracies. They certainly had
no favorable body of international law to draw on, or institutional spaces
in processes of international law-making, or political opportunities of the
sort that Thomas lists as contributing to the success of GF in drafting the
U.N. Protocol. Yet the prohibitionist impulse of feminism, manifested in
a strictly legal project in the international realm and informed by an
imagined global sisterhood thought to overshadow the larger politics of
colonial rule, bears an uncanny resemblance to present-day GF. Interesting also is the fact that the international social purity movement in the
1920s and 1930s later found its most enthusiastic constituents amongst
elite nationalist men and women eager to use limited self-rule to pass
anti-trafcking legislation.116 This was, after all, the nationalist resolution
of the womens question,117 whereby Indians who could not challenge British rule in the public, material sphere, sought to challenge it in the spiritual, private sphere by fashioning an ideal femininity for the Indian woman
115

Andrew, supra note 7, at 6162.


Heather S. Dell, Hierarchies of Femininity: Sex Workers, Feminists and the Nation
72 (1999) (unpublished Ph.D. dissertation, Duke University) (on le with author).
117 See Partha Chatterjee, The Nation and its Fragments: Colonial and Postcolonial Histories (1993).
116

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in juxtaposition to the coarse common woman of whom sex workers were


emblematic. The similarities of such abolitionist efforts should perhaps
come as no surprise because, as postcolonial scholars have observed, techniques of governmentality were introduced and perfected in the colonies
before they were exported to the metropole.118 In other words, colonial subjects had recourse only to civil society as an arena in which to question
the policies of the colonial government. It is in the context of this troubled history of a predecessor of GF that I present an account of the ascendance of present-day Indian GF in relation to antisex work laws.
Shamir has already demonstrated the dramatic impact of the U.N. Protocol and the VTVPA on the Israeli domestic law relating to sex work and
trafcking. Whether the Indian example echoes this experience depends
to some extent on the temporal dimensions of the analysis. If we conne
ourselves to the present juncture as an end-point of almost twenty years
of debates over the reform of the Indian antisex work law (namely the
Immoral Trafc Prevention Act, 1956),119 the handiwork of Indian GF in
conjunction with the sanctions under the current U.S. led prohibitionist
agenda will become immediately apparent. However, I extend the timeline analysis precisely to problematize a linear process of causation between domestic law reform, on the one hand, and international or domestic GF, on the other. The most signicant factor in this respect is a set of
dynamics, parallel to the international prohibitionist agenda itself, operating through modes of international governance that many would explicitly identify as new governance and employing techniques of governmentality,120 and this relates to the tension between the politics of pandemic
control and the international projects of GF.
This is not to underestimate the chilling effect that the prohibitionist
agenda has had on the public discourse around sex work. It has indeed created a Cold War sensibility, where sharp lines are drawn between those who
want to abolish sex work and sex trafcking and those who are more ambivalent about such an absolutist stance. There is anecdotal evidence to
suggest that individuals and groups participating in discussions on sex
work and sex trafcking must respect zones of unspeakability for fear of
being known publicly as supporters of the legalization of sex work. After
all, NGOs perceived to advocate the legalization of sex work have been
visited with swift sanctions through the loss of international funding.121 All
118 Partha Chatterjee, The Politics of the Governed: Reections on Popular
Politics in Most of the World 36 (2004).
119 See G. B. Reddy, Prevention of Immoral Trafc and Law (2004).
120 Swati Ghosh, Surveillance in Decolonized Social Space: The Case of Sex Workers
in Bengal, 23(2)(83) Soc. Text 55 (2005).
121 Rema Nagarajan, US Accuses NGO of Trafcking, Hindustan Times, Sept. 29,
2005, available at http://www.hindustantimes.com/news/181_1504660,00050001.htm; other
reports suggest that the concerned NGO, SANGRAM, declined to accept USAID funding
once it found out that funding required that it take the prostitution loyalty oath as it has
begun to be called in NGO circles; see http://www.genderhealth.org/loyaltyoath.php (last

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this has the real potential for irreversibly shifting the balance of power at
the national level, where on the one hand, sex worker organizations are being starved of their already limited funds, while domestic organizations towing an abolitionist feminist line and international outposts of U.S. churchbased organizations are ush with funds to ostensibly counter sex trafcking
and rescue sex workers from sex work.
With a slightly longer presence in India than the prohibitionist agenda,
international efforts to prevent the spread of HIV/AIDS have led to the
increased circulation of services and capital and to the establishment of a
nation-state/foreign donor/civil society complex. This complex is remarkable for its innovation of public-private partnerships, so that there is a
blurring of boundaries between the state and civil society. Note the difference from the prohibitionist agenda, which seeks to increase police powers exclusively wielded by the state. Informed by the liberal attitudes of
the medical profession, the sensibility of this complex is one of tolerance
for varied sexual practices, including sex work. However, its support of
sexually marginalized groups is related to a different mode of bureaucratic
rationality, namely, a utilitarian calculus that allows room for interventions amongst groups like sex workers and their consequent mobilization.
But even this happens only to the extent necessary to prevent the spread
of HIV to the general population, really, innocent wives and children in
heterosexual marital families. As such, this complex has no legal agenda
of its own. So, on the one hand, while the exigencies of pandemic control
would be a slippery slope on which to base a campaign for the decriminalization or legalization of sex work, it counteracts the prohibitionist project, which altogether refuses to countenance the existence of sex work or
sex workers.122 Ironically then, the public discourse surrounding HIV/AIDS
offers the most valuable space for discussions around sex work in India
today. This is indeed the point of departure for my analysis of the ascendance of GF in relation to antisex work laws.
Soon after the discovery of the HIV virus in a sex worker in the city
of Chennai in 1986, the Indian government proposed to pass the AIDS
Prevention Bill, 1989,123 which provided health authorities with invasive
policing powers in the form of forcible testing, isolation of members of
high-risk groups (including sex workers) and coercive tracing. It was only
after a sustained campaign against this patently unconstitutional law by
civil society organizations that the government withdrew it. This was replaced by a more considered process of policy formulation.
visited Apr. 25, 2006) for further details.
122 This is not unlike the role of the medical profession in the case of abortion, where
much of the public and major organization support for the repeal of restrictive abortion
laws came from elite professionals, particularly doctors. See Gerald N. Rosenberg, The
Hollow Hope: Can Courts Bring About Social Change? 26162 (1991).
123 See Siddhartha Gautam, The AIDS Prevention Bill, 1989: Protection or Prosecution?, Lawyers, Oct. 1989, at 7 (providing details of the Bill) (on le with author).

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The early 1990s presented a window of opportunity during which both


projects for regulatory reform and sociological studies of the sex industry
had an open-ended quality to them. For example, when the Ministry of Human Resources Development commissioned a law school to draft legislative proposals for law reform, the effort yielded at least four drafts for discussion, all of which reected complex combinations of partial decriminalization and legalization, especially in the mode of workers rights supplemented by anti-discrimination measures for sex workers and their children.124 Similarly, studies of sex industries carried out by sociologists125
during this phase built upon the academic scholarship on sex work,126 which
had produced highly nuanced understandings of the sex industry especially
on the choice/consent spectrum that leads women into sex work. None of
this made it into feminist and regulatory debates on sex work in any
meaningful way. There has, after all, always been in the discursive realm
a sharp split, especially along disciplinary lines, on how to make sense
of sex work and how to regulate it.127 Ultimately, the experimental space
for regulatory reform also soon came to be severely curtailed.
In January 1992, the Indian federal government established the National Commission for Women (NCW) as a specialist body, consisting of
political appointees, to advise the federal government on issues relating
to women. From 1996 onwards, the NCW began to examine seriously the
question of sex work and trafcking. In the process, the NCW and corresponding state commissions for women at the provincial level commissioned
a plethora of regional and national studies, typically carried out by NGOs.
These were not necessarily feminist NGOs, but they invariably produced
a xed institutional narrative of the sex industry focused almost exclusively on brothel-based sex work in big cities, as well as of the most exploitative and violent mode of organization of sex work, where a trafcked
sex worker was forced and beaten into sex work under conditions of bondage.128 At the regulatory level, the NCW played an active role in seeking
both domestic and regional law reform. The NCW called for the adoption
of a regional treaty against trafcking in 1997. In January 2002, member
nations of the South Asian Association for Regional Cooperation adopted
124 See Prabha Kotiswaran, Preparing for Civil Disobedience: Indian Sex Workers and
the Law, 21 B.C. Third World L.J. 161, 18295 (2001) for a discussion of these alternatives.
125 In particular, I have in mind studies like the one compiled by K. K. Mukherjee &
Deepa Das. K. K. Mukherjee & Deepa Das, Ctr. Soc. Welfare Bd., New Delhi,
Prostitution in Six Major Metropolitan Cities of India 119 (1996).
126 See S. D. Punekar & Kamala Rao, A Study of Prostitutes in Bombay, with
Reference to Family Background (2d ed. 1967); B. R. Joardar, Prostitution in
Historical and Modern Perspectives (1984).
127 This split needs to be acknowledged notwithstanding Shamirs caution against empirical work as capable of solving the intractable normative debates around sex work.
128 The latest such report is from the National Human Rights Commission; Sankar
Sen & P. M. Nair, Natl Human Rights Commn, UNIFEM, Inst. of Soc. Sci., A Report on Trafcking in Women and Children in India 20022003 (2004) [hereinafter
NHRC Report].

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the SAARC Convention on Preventing and Combating Trafcking in


Women and Children for Prostitution, which, interestingly, did not track
the denition of trafcking in the U.N. Protocol.129
Meanwhile, at the national level, at a 1997 workshop organized by the
NCW and a womens NGO, The Joint Womens Programme, the NCW
claimed to adopt a human rights perspective which considered prostitution as a violation of human rights, a hindrance to womens freedom,
equality and struggle against exploitation and oppression.130 This signied a
major, visible shift in the states understanding of this important womens
issue. Feminists had acknowledged all along that the ITPA and its predecessor, the Suppression of Immoral Trafc Act, 1956, embodied a politics of toleration of sex work following the general approach of the 1949
U.N. Convention for the Suppression of the Trafc in Persons and of the
Exploitation of the Prostitution of Others, whereby sex workers or sex work
were not sought to be abolished. The Convention and the 1956 Act were
thought to target only trafcking, brothel-keeping, pimping, and procuring and did not intend to criminalize the activities of sex workers, although most countries did in fact penalize the sex worker as well.131 Yet
in light of the implementation of the SITA and ITPA, it became clear to
Indian feminists that what was meant to be toleration of the sex worker
had in fact turned out to be a toleration of customers under laws that did
not explicitly punish the customer while punishing sex workers disproportionately and more drastically when compared to other stakeholders in
the sex industry. This discriminatory impact of the law exposed the hypocrisy of the patriarchal state, suggesting its belief in a functionalist explanation for sex work, where sex work was viewed in hydraulic terms, as a
safety valve for irrepressible male sexuality (which is why men were protected by the law) and to which sex workers took as a matter of choice
(which is why she was often punished). The human rights approach of
the NCW in this context was, for these feminists, a welcome change, articulating, as it did, a feminist politics understood as having only the interests of sex workers at heart while also enabling the formation of a distinctly Indian feminist voice in its repeated articulation of postcolonial
difference in how the poverty of Indian women when compared to Western women warranted a different vocabulary for law reform. In the process, however, the NCWs human rights approach also supported the modes
of argumentation of radical feminism more generally by viewing third

129 SAARC Convention on Preventing and Combating Trafcking in Women and Children for Prostitution, http://www.december18.net/trafckingconventionsSAARC2002.pdf
(last visited Apr. 25, 2006).
130 Jyotsna Chatterji, Introduction to Madhu D. Joshi, Women and Children in Prostitution: Human Rights Perspectives (Report of the National Workshop) i, vii
(1997) [hereinafter Women and Children in Prostitution].
131 Jean DCunha, The Legalization of Prostitution: A Sociological Inquiry
into the Laws Relating to Prostitution in India and the West 42 (1991).

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world women and children in sex work as sex slaves, forced as they were
(presumably unlike Western women) into sex work via coercion, poverty,
and abuse.
In terms of law reform therefore, the NCW reproduced concrete policy proposals for partial decriminalization suggested by a prominent radical feminist at the 1997 workshop132 over that of complete decriminalization made by a sex radical feminist present at the workshop, but which the
NCW understood as equivalent to legalization.133 More specically, this
meant the criminalization of customers and changes to, but not the repeal
of, those sections which were used the most against female sex workers,
such as Sections 7(1) (prostitution in a public place), 8 (soliciting), and
20 (removal by Magistrate of prostitute from any place within his jurisdiction in the general interest of the public).134 Thus, despite the general
and self-admitted indifference of the Indian womens movement and feminist NGOs to the issue of sex work and to sex workers as a constituency,135
when sex work did become a live policy issue for feminist debate, notwithstanding the presence of countervailing feminist voices, a certain version
of feminist politics rose to governance mode when it found a foothold in
an inuential state body.
The NCW had set the tone for the federal government in several of its
subsequent policy statements, replicating within them notions of the power
of patriarchy, false consciousness, and the irreparable harms of sex work,
collapsing all sex work into sexual servitude and slavery, assuming the impossibility of any sex worker consent, however circumscribed, given Indian
womens poverty, and a refusal to distinguish between child prostitution
and adult prostitution and between sex work and trafcking.
132 Women and Children in Prostitution, supra note 130, at 114. However, the exact nature of the changes was not elaborated on, although the radical feminist whose recommendations the NCW relied on proposed the deletion of Sections 7(1) and 8(b) and the
removal of the discretionary powers of the Magistrate under Section 20 at the workshop.
Id. at 47.
133 For details of the workshop proceedings, see Kotiswaran, supra note 124, at 194.
134 Section 7(1) penalizes both any individual who carries on prostitution, as well as
the person with whom prostitution is carried on, in the vicinity of public places. Section
8(b) punishes anyone who solicits for the purpose of prostitution. Section 20(1) is a vaguely
worded provision which allows a Magistrate to order the removal of a prostitute from any
place within his jurisdiction, if he deems it necessary to the general interest of the public.
The text of these sections can be found in G. B. Reddy, supra note 119, at 49 (section
7(1)), 56 (section 8(b)) and 88 (section 20(1)).
135 Ctr. for Women and Dev. Studies (New Delhi) & Humanistic Inst. for Cooperation with Developing Countries (Bangalore), Women in India: Reecting
on Our History Shaping Our Future, 2223 (Jamuna Ramakrishna ed., 1993) (proceedings of a Consultation on Gender and Development jointly organized by the Center for
Women and Development Studies, New Delhi and the Humanistic Institute for Co-operation
with Developing Countries, Bangalore) (on le with author). Of course, not all feminists
agree; some feminists argue that it is the contemporary feminist movement alone that is
claiming political rights and security at work for sex workers. Janaki Nair & Mary E. John,
Introduction to A Question of Silence? The Sexual Economies of Modern India 1,
15 (Janaki Nair & Mary E. John eds., 1998).

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As a result, by the mid- to late 1990s, with the NCWs inuence on the
very terms of the debates surrounding sex work, the range of regulatory
options up for discussion became drastically limited, and, in response, the
state typically oscillated between the status quo and partial decriminalization. In 1998, for instance, during the rule of the Hindu nationalist party,
the federal Department of Women and Child Welfare formulated the Plan
of Action to Combat Trafcking and Commercial Sexual Exploitation of
Women and Children136 (the Plan of Action), which recommended that
the ITPA be reviewed to ensure that sex workers were not re-victimized by
the law, but that customers, trafckers, pimps, brothel-keepers, parents/
guardians, and others who colluded with them be made liable. The Plan of
Action, however, stopped short of calling for the partial decriminalization
of sex work, namely calling for the repeal of sections of the ITPA used the
most against sex workers. Instead, using the powerful image of Indian sex
workers as victims provided by Indian GF, the state expressed an unarticulated distinction between victims of commercial sexual exploitation
who were willing to be rehabilitated, and therefore deserving of state help,
and those victims who were notthus reinforcing the conservative codes
for female sexuality that GF were targeting to begin with. This victimization also became the basis for other egregious violations of sex worker rights
proposed in the Plan of Action, such as the forced institutionalization of
child victims and children of sex workers and the isolation of HIV-positive
sex workers in the terminal stages of AIDS in separate shelter homes.137
In another instance, an amendment to the ITPA was posted on the
website of the Ministry of Human Resource Development in 2003138 proposing the deletion of Section 8, in addition to expanding the denition
of trafcking to track word for word the denition in the U.N. Protocol,
while increasing penalties against brothel-keepers and trafckers. Also, a
2004 study conducted by the National Human Rights Commission and
supported by UNIFEM recommended that Section 8 of the ITPA should
not be used to re-victimize victims but did not call for its deletion.139 The
most recent proposal, The Immoral Trafc (Prevention) Amendment Bill,
2005, reportedly approved by the Indian cabinet and set to be presented
at the current session of the Indian parliament proposes the deletion of
Sections 8 and 20 of the ITPA, substantially conforms the denition of
trafcking to that in the U.N. Protocol, and criminalizes customers.140 The
amendment is rumored to be aimed at elevating India out of the Tier 2 watch

136 Dept of Women and Child Dev., Ministry of Human Res. Dev., Govt of India, Plan of Action to Combat Trafcking and Commercial Sexual Exploitation
of Women and Children (1998) (published by Sanlaap, Kolkata as a pocket edition).
137 Id. at 37.
138 Amendment Proposed in Immoral Trafc (Prevention) Act, 1956, http://wcd.nic.in/
proamendment.htm (last visited Apr. 25, 2006).
139 NHRC Report, supra note 128, at 9 of the Executive Summary.
140 The Immoral Trafc (Prevention) Amendment Bill (2005) (on le with author).

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list of the U.S. Department of State where it has been for the second year
in a row.141 Thus, it is clear that unlike the early 1990s, with the advent of
the NCW and the strands of feminism that it propelled into governance
mode from the mid-1990s onwards, the options for legal reform on the table
have become rather limited culminating in a proposal that now reconnects
with the international and U.S. legal regime that American GFeminists have
had so much to do with.
In this Section, I complicate the analysis of GF on two primary fronts.
First, I problematize the claim of newness of GFs international projects
in light of the colonial legal history of Indian laws on sex work. Second,
I chart out a brief history of legislative debates in India over the regulation of sex work in the past twenty years, arguing that while the changes
in the international political and legal realm have hastened the impulse
for domestic legislative reform and shaped the nal form of the proposed
2005 amendment, the claim of a causal link between them requires considerable qualication. Qualication is warranted on at least three fronts
the rst is by highlighting the coexistence of at least two international
regulatory projects, namely that of pandemic control, which is in deep tension with the other international regulatory project of GF.
The second qualication is that the receptivity of the Indian state to
international law achieved through the efforts of American GF was enhanced by the rise in the domestic context of Indian GF. In other words,
while acknowledging the importance of the international for the national,
its power must not be overstated. Hence, while the international effects
an enormous shift in the bargaining power of stakeholders at the national
level, at some point, international mandates and international law become
ensnared in a web of multiple legal regimes operative at the national and
local levels that effectively lead the international to become just one
more tool in the hands of the most powerful player in that context, typically the nation-state backed by Indian GF. The international is thus not
determinative in any sense and, in its constant interactions with the national, alternates between the foreground and background.
The third qualication is that, in highlighting the role of Indian GF
in this interplay, I do not want to overstate the political power that either
the NCW, or the GFeminists that they heed, wield. This is because the
NCW is, ultimately, an advisory body, and there are instances where their
moral authority as spokespersons of womens interests is just that. For
instance, despite a prolonged ongoing litigation and directions from the
National Human Rights Commission, the Goa State Commission for
Women, and the National Commission for Women to protect the rights of
commercial sex victims, in the Baina beach red-light area of Goa, the provincial government in Goa razed 800 to 1200 cubicles and shacks there, 400
141 See U.S. Dept of State, Trafcking in Persons Report, supra note 30, available at http://www.state.gov/g/tip/rls/tiprpt/2005/46610. htm.

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of which were being used for sex work.142 Further, although new governance is usually associated with open deliberative modes of lawmaking, the
political culture of the Indian state fosters little accountability and transparency. For example, despite the far-reaching effects of The Immoral Trafc
(Prevention) Amendment Bill, 2005, a text of the amendment is not publicly
available for debate, unlike earlier proposals to amend the ITPA. Instead,
it was only after sex worker organizations read a news report wherein government ofcials claimed that sex worker groups had endorsed proposed
amendments to the ITPA, that the groups could bring pressure on the
concerned department to divulge the text of the amendment. Under such
circumstances, GF cannot be said to be literally inuentialbut then perhaps they do not need to be. After years of shaping the hearts and minds
of policy-makers, GFeminists could sit back to allow international and foreign laws to do their work.143
Part Two: Developing Methods for Studying
Governance Feminism
Janet Halley
As we have seen, participants in the ICTY process included governance feminists (GFeminists) eager to claim credit for achieving change
in the law, and ofcial participants eager to acknowledge feminist
inuence. A deep archive, marshalled and analyzed by Karen Engle,
shows how a long-running debate about rape within feminism arrived at
the ICTY and reached a temporary resolution there. Is wartime rape a specially gruesome feature of male domination, or is it paradigmatic of
womens subordination generally? Tracking this division, some feminist
activists saw rape in the Yugoslav war not only as genocide, but as Serbian genocide, and indeed saw Serbian genocide as primarily rape (a
war against women); while others saw rape on all sides of the Yugoslav
conict, some indeed seeing it as genocidal on all sides, as a heightened, intensied instance of everyday rape and male domination generally (and thus, again, as a war against women).144 Engle has carefully
mapped out the ways in which the ICTY statute, rules of evidence, charging practices, indictments and prosecutions, and Trial Chamber and Appeals Chamber decisions did and did not register an acceptance of feminist inuence generally; she shows that feminist rule preferences sometimes made it into the new regime, and that, where they did not, it is often fair to see the ICTY as mediating between the two feminist camps in

142 Ravi Sharma, Crackdown on a Beach, Frontline, July 1730, 2004, available at
http://www.hinduonnet.com/ine/2115/stories/20040730005511300.htm.
143 For Halleys discussion of such normative achievements of GF, see infra Conclusion.
144 Engle, Feminism and its (Dis)conentsm, supra note , at 787.

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its decisions. In my own work on the ICTY rules about rape and sexual
violence, I draw gratefully from Engles analysis and from our discussions.
My own contribution is an attempt to articulate a consequentialist reading of the new ICTY rules. To get there, I have paid particular attention
to an interesting paradox in the feminist victories: many new rules that
can be attributed at least in part to GFeminist legal activism increase the
sovereigntist character of the rule structure, while others are patently managerial. Thus we see feminists taking victories in the form of strong, almost
irrebutable presumptions, per se inferences, and satisfaction of the prosecutors burden of proof on one essential element of a crime by her proof of
another; but also in the form of rules that require searching trials of the
facts, elaborate display of circumstances, and judicial consideration of
many uncertainly decisive factors before liability can be attributed.
I am interested in these outcomes because they are part of the legal
instrumentality of rape in humanitarian law now and because they may
well have very different effects in the world than anticipated, I think, by
the feminists who promoted them.
I am trying to get away from the view of IHL as a set of high-level
announcements of the proper norms for warriors to obey. This model of
prohibition presumes that it brings moral force as well as deterrent suasion to bear on the world and thus effectively reduces the incidence of the
prohibited conductand does not do much else. Instead I assume that we
will have, at least sometimes, some of the following: Holmes rule-abiding
bad man; chronic and empirically uncorrectable overenforcement (falsepositive convictions and unintended deterrences) and underenforcement
(the tolerated residuum of abuse); permissions springing into existence
wherever prohibitions run out; thus legitimation of conduct falling outside the scope of prohibition; and moral denunciation of innocent (or least
detrimental) conduct falling within it.145 I assume also that we are faced
with a legal regime that is anxious to the point of paranoia about its legitimacy, cut off from any actual instruments of police-style enforcement,

145 Oliver W. Holmes, The Path of the Law, 10 Harv. L. Rev. 61, 457 (1897) (asking
us to understand as law, the law as it would be seen by a bad man . . . who cares nothing
for an ethical rule which is believed and practiced by his neighbors [but] is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail
if he can); Kennedy, supra note 4, at 14047 (analyzing the actual distributive effects of
rules governing sexual abuse by taking into account The Cost of Precautions Versus the
Burden of Excess Enforcement, including Costs to Women and Benets to Men, and
assessing them all in light of the Bargaining [of men and women] in the Shadow of Sexual Abuse Law; see Ian Halley, Queer Theory by Men, 11 Duke J. Gender L. & Poly 7,
3638 (2004) for my argument that Kennedys analysis falls short to the extent that it underplays the importance of benets to women and costs to men); Hohfeld, Fundamental Legal
Concepts as Applied in Judicial Reasoning, 23 Yale L.J. 16, 3044 (19131914) (mapping
the jural opposites in which, for instance, rights produce no-rightsthat is, one
mans right produces anothers no-right and one mans privilege generates anothers
dutyand jural correlatives in which one mans immunity generates anothers disability); and Thomas, Legimation Critique, infra.

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and doomed to operate ex post, long after the violence it would govern
has ceased, and always in the wake of ideological shifts produced in part
by that very violence.146 How might the particular arrangement of sovereigntist and managerial feminist rule victories actually play out in a world
envisioned to include these dynamics?
Here is a highly encapsulated version of the problematics Id like to
expose. Lets imagine that the sovereigntist legal imaginaire, within feminism, wanted to make rape easier to prove and to mandate the conclusion
that, where it occurs between a combatant on one side and a civilian on the
other in armed conict, it violates existing humanitarian law. We all know
that criminal systems heavily dependent on per se rules (in this they resemble civil strict liability regimes) provide a spectacular conversion between positive law and moral denunciation, facilitating moral judgment
at the moment of rule announcement; they also make it easier to convict
whoever is accused. But the resulting codication can be technical, chilly,
and managerial: precisely not the hot moral message the sovereigntist imaginaire sought. Plus, its easier to get false positive convictions, and thus for
ideologically motivated players to challenge the legitimacy of the process. Paradoxically, then, expertization and the political opportunities
offered by the actuality or danger of false-positive convictions can be deployed to sap normative energy from the rule. The moral clarity of sovereigntist rules comes at a price.
But the same can be said of managerial rules requiring lavish displays
of all the facts, careful balancing of all the circumstances, and painstaking assignment of just the right liability to just the right defendant. Systems like that require highly individualized and particular assignments of
liability for spectacular harm and fault and apply intense moral judgment
when conviction is achieved. But in the meantime they also make it harder
to convict people. Trials take longer, there will be fewer of them, and they
will be ideologically more salient. The focus on individual guilt permits
the actual defendants (not just ideologically motivated bystanders) to
challenge the legitimacy of the forum. If they are convicted, they may look
like scapegoats; if they are not, the due-process legitimacy of the forum
scores a gain at the expense of the feminist norm. Feminism operating in
this managerial mode can expect to propagate its power, again, only through
the noisy paradoxicalities of the legal system it is using.
With an eye to opening analysis up to the possible unintended consequences of GFeminist rule victories in the ICTY, I am going to look
briey at a the trilogy of GF victories, elebii, Furundija and Kunarac
(often designated the Foa case because the crimes all occurred in that

146 For an elegant statement of these constitutive contradictions within and between
IHL procedure and IHL normativity, see Martti Koskenniemi, Between Impunity and Show
Trials, in Max Planck Yearbook of United Nations Law, Volume 6, at 135 (J. A.
Frowien & R. Wolfrum eds., 2002).

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region), specically at their holdings recognizing that rape can be the


actus reus of various higher-level crimes in humanitarian law, specically
here crimes against humanity and torture, and that enslavement with a
sexual component is similarly a violation of IHL.147
Rape. To prove rape, the prosecutor must show that there was penetration, nonconsent (not force, coercion, or failed resistance), combatant
status of the accused, and intent (that is, intent to penetrate).148 Though the
earlier ICTY cases required evidence of a rape victims nonconsent, and
after several cases had to be dismissed because the victims ultimately
declined to testify, Kunarac inferred nonconsent from the coercive circumstances of armed conict in the Foa region and presumed coercion
on the basis of the victims detention.149 Its very possible that this holding will be understood just as it is written: detention in large camps constitutes coercive circumstances sufcient to negative the victims consent.
But none of the rapes charged in Kunarac happened in the large detention
centers: all of them involved victims taken from such places (and possibly elsewhere) to apartments and homes in the region and raped there.150
Kunarac was convicted, on one of his many counts, of raping D.B., whom
he had removed from Partizan Sports Hall and taken to a civilian residence,
over his objection that she initiated sexual contact with him. The coercive
circumstances relied on by the Trial Court on this count were found entirely on the fact of Muslim girls and women detained in Partizan and
elsewhere in the Foa region.151 And feminist advocacy in the Rome Statutes process may well have squared this precedential circle: the Elements of Crimes document provides that nonconsent can be established
byamong other ndings like threat of force or coerciondetention
. . . or taking advantage of a coercive environment.152
Do we see here the imprint of structural or even radical feminism?
Feminists in these traditions have long argued that, in rape trials, force,
resistance, and consent/nonconsent are the wrong issues because of coercive circumstances. Individualist feminism has opposed this view. It seems
147 Prosecutor v. Delali (elebii Trial Chamber Judgment), Case No. IT-96-21-T, Judgment (Nov. 16, 1998) (commonly referred to as elebii case); Prosecutor v. Delali (elebii Appeals Chamber Judgment), Case No. IT-96-21-A, Judgment (Feb. 20, 2001); Prosecutor v. Furundija, Case No. IT-95-17/1-T, Judgment (Dec. 10, 1991); Prosecutor v. Kunarac (Kunarac Trial Chamber Judgment), Case Nos. IT-96-23-T & IT-96-23/1-T, Judgment
(Feb. 22, 2001); Prosecutor v. Kunarac (Kunarac Appeals Chamber Judgment), Case Nos.
IT-96-23 & IT-96-23/1-A (June 12, 2002).
148 Kunarac Appeals Chamber Judgment, Case Nos. IT-96-23 & IT-96-23/1-A 438,
442.
149 Id. at 12932, 218. For an astute discussion, see Engle, Feminism and its
(Dis)contents, supra note , at 80405.
150 Prosecutor v. Kunarac, Case No. IT-96-23-PT, Second Amended Indictment (Oct.
15, 1999).
151 Kunarac Trial Chamber Judgment, Case Nos. IT-96-23-T & IT-96-23/1-T 646.
152 Ofcial Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, 1st Sess., Art. 7(1)(g)-1, Art. 8(2)(b)(xxii)-1, ICC Doc. No. ICCAsp/1/3 and Corr.1 (2002) (emphasis added).

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right to conclude that structural feminism will score a victory if it indeed


makes nonconsent inferable from the coercive circumstances of armed conict.153
But will that be good or bad for the expansion and legitimacy of
feminist normativity? Will it help to reduce the amount of rape inside and
outside of war? It depends.
First, note that the rule would allow conviction of men who could prove
consent. It invites overenforcement. That is what sovereigntist rules like this
are designed to do. Structural feminism almost by denition does not care
about this possibility, but many other feminisms, especially individualist
and sex-positive feminisms, care very much. Menguilty ones, sure, but
innocent ones tooare likely to object. Indeed, women who want to sleep
with men involved in armed conictarmed conict which they may
well oppose and in which they nd themselves, against their will, on an
opposite sidewould also object. Nor is this a remote or speculative
possibility: Kunarac held that an intrastate armed conict governed by
IHL extends through the whole territory under the control of a party to
the conict, whether or not actual combat takes place there. . . . A violation of the laws or customs of war may therefore occur at a time when and
in a place where no ghting is actually taking place.154 In an intrastate
ethnic conict affecting an entire region, the possibility of conict spans
the conict zone. I will return to this problem shortly when considering
the new rules of torture.
Note that the victory is not complete: for structural/radical feminism
the relevant coercive circumstance was male dominance. Here, it is national
conict. What might this mean? By evacuating meaningful consent from
the war zoneindeed from the entire region under internal dispute
humanitarian law carrying this rule might render it the normative rule for
sex everywhere else and implicitly conrm the possibility of meaningful
consent in most non-war (and non-prison) settings. Structural/radical feminism would then have won a battle but lost the war. Alternatively, IHL
could become the vanguard for local law, which could adopt it or adapt
it. Kotiswaran tells a story of the local intensication of radical feminist
policy transferred from international to Indian law through international
trafcking law; it could happen again. Radical feminism would then actually get the prohibition it wantsthus defeating other forms of feminism, and male interests, highly hostile to the overenforcement this rule
might produce.
153 The ICTY and ICTR produced a range of holdings on the force/coercion/consent/
nonconsent in the essential elements of rape. See Anne Marie L. M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR 10337 (2005). Im tracing the possibilities of one rule
advocated very intently by structuralist GFeminists working on both sides of the controversy detailed by Engle.
154 Kunarac Appeals Chamber Judgment, Case Nos. IT-96-23 & IT-96-23/1-A 57.

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There are also some pretty distressing consequences attaching highly


national consequences to women supposedly protected by the rules that
GFeminists are seeking. If consent is part of the legitimation of the sex
that women have with men, it is important inside feminism that this rule
requires criminal enforcement to presume that women in the situation of
these women can never consent. Feminism has helped to construct a legal
domain in which consent is crucial to personhood and in which (some)
women are legally incapable of it. Moreover, the actual trials conducted
under this rule need not require womens testimony about their lack of
consent: proof from other witnesses of the fact of intercourse and the fact
that the region houses armed conict might sufce. I will look to another
subrule, this one about torture, to spell out some of the consequences of
that shift in the shape of the legal spectacle.
Torture. To be liable for committing an act of torture under the ICTY
Statute and, through it, the Torture Convention,155 the cases I am studying
held that the accused must have done an act that caused intense suffering;
intentionally; and in his or her ofcial capacity for one or more of a list of
purposes, which include punishment, coercion, discrimination, and intimidation.
Rape was prosecuted as the underlying act constituting torture in several of the ICTY cases. And there are several sovereigntist moves here.
First, a holding that rape of a woman by a man per se causes her intense suffering.156 And second, a holding that a combatant who has raped a civilian
afliated with the opposed entity would almost always be held to have acted
for one of the prohibited purposes. Third, a nding that the impermissible purpose element of torture had been satised by the fact that rape was
discrimination based on sexwhich, if elevated to a rule, would allow a
virtual per se nding of impermissible purpose in all male/female rapeas-torture cases.157
At the outmost reach of the GFeminist rules I am tracing here, liability for torture based on rape could be achieved on a showing of armed conict in the region, combatant status of the accused, civilian status of the
victim, intent to penetrate, the coercive circumstances of the armed conict
itself, and penetration, punkt.
155 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. Res. 39/46, U.N. Doc. A/RES/39/46 (Dec. 10, 1984).
156 Kunarac Appeals Chamber Judgment, Case Nos. IT-96-23 & IT-96-23/1-A 150
51; elebii Trial Chamber Judgment, Case No. IT-96-21-T 495.
157 The court sets up what reads like a very-difcult-to-rebut presumption to this effect:
[I]t is difcult to envisage circumstances in which rape, by, or at the instigation of a public ofcial, or with the consent or acquiescence of an ofcial, could be considered as occurring for a purpose that does not, on some way, involve punishment, coercion, discrimination or intimidation. In the view of this Trial Chamber it is inherent in situations of
armed conict. elebii Trial Chamber Judgment, Case No. IT-96-21-T 495. The elebii Trial Chamber did nd that Hazin Delis rapes were forcible and had actually caused
intense suffering, but, under the Chambers rule, subsequent prosecutions could forgo
proof on both elements. Id. 940, 941, 963, 964.

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What might this mean in action? Lets consider the possible effects
of making rape per se the cause of intense suffering. This rule means
that women need not testify to their intense suffering. It is possible to
have trials, and convictions, without this testimony. This is a huge victory
for some feministsa full-bore legitimation of the idea that rape always
causes intense sufferingat the expense of others, once quite numerous
but now very hard to nd, who think that this is not right.158
It also means that the actual women who suffered need not be consulted about what caused their suffering. Engle emphasizes the political
gravity of this preclusion, and rightly so, I think. The risk that they might
say that what caused them to suffer was not primarily their rapes but the
death and disappearance of their lovers, husbands, fathers, brothers, sons,
and friends; the destruction of their worlds; the emergence of a series of racist cultural orders coterminous with legitimated statesthis risk need not
be run. Feminism speaks for women on the ground.
At the same time, the per se rule could increase the value of rape as a
weapon of war. If humanitarian law raties the idea that rape intrinsically
causes intense suffering, it may lend legitimacy to the intense suffering
that it causes. Even if it does not, the ideological game of war now has
another way of punishing, intimidating, and coercing civilian populations:
rape the women. We could get more rapes.
But wait! Remember that it is a legal rule and its per se form could also
work the other way. The historical fact of intense suffering becomes legally
true now through an act of bureaucratic management. This truth is produced not in an I/Thou encounter, but by a clerk in a back ofce staring
into the bright blue screen of his computer. The centrality and urgency of
the idea that rape causes intense suffering may be eroded, not fortied,
by its installation in a per se rule.
And both of those effects could register in distinct locations: the urgency with which rape is understood to cause intense suffering could relax
in Geneva, the Hague, the Security Council; while combatants far away
come to see rape as a more valuable tool against their enemies, not only because they can exploit any rapes that happen to their women to demonize their enemies and consolidate their control over their own side, but
also because the rape, far from being disabled, has instead been weaponized.
Finally, lets look back over the rule structure generally, and consider
the cascade of sovereigntist rules making it easier to convict combatant
men of torture for the sex they have with civilian women on the other side
of the conict. It is a little surprising, but seems right: if the judge is willing
to infer a lack of consent from the circumstances of armed conict, and if
evidence of penetration is available, we could see convictions for rape as
158 Pamela Haag, Putting your Body on the Line: The Question of Violence, Victims,
and the Legacy of Second-Wave Feminism, 8 Differences 23 (1996).

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torture on nothing more than intended sexual intercourse involving a civilian on one side of an armed conict and a man who is an armed combatant on the other. Imagine that, now, in a case like that of the Yugoslav
ethnic conict: the rules contemplate convictions for rape as torture based
on sex between male combatants and women in ethnically opposed groups.
Recall that this nationalist conict involved ethnic cleansing of what
had been a cosmopolitan population, one characterized by a high degree
of ethnic intermarriage and ethnic mixing; the poignancy of the example
is sharp. The rule could end up ostensibly requiring cosmopolitan populations being swamped into nationalist wars which they oppose to ethnically
cleanse themselves.
It is an astonishing convergence of the sovereigntist feminist prohibition impulse merging fully with nationalism. It bears a striking resemblance, if only coincidental, to the border-control-ratication effect of structuralist feminist success in international trafcking law apparent in Thomass contribution below. As Engle shows, however, the rules I have been
describing were advocated not only by the wartime rape feminists but
by the everyday rape feminists too.159 Feminist advocacy across the board
sought the most intense sovereigntist prohibition they could get. The possibility that they were ratifying ethnic differentiation, and providing a legal
means to intensify it, does not seem to have occurred to them.
Nor did they evince concern that their sovereigntist rules could end
up circulating in IHL not as an avenging sword, but as cool, technocratic
managementas Foucaultian governance. Wars fought in full compliance with the new rape ruleswars without rapemight nevertheless be
utterly violent. As Engle puts it, In Omarska, . . . women were raped, but
the lives of most were spared. Men were killed.160 Feminist ratication of
the special status of women in war could easily be assimilated into a
women and children rst civility that remands men to intensied violenceor, just perhaps, could fully integrate women into that violence.
Enslavement. I am currently working on an equally intense focus of
GFeminist activism in the ICTY and the Rome Statute negotiations: the
effort to establish sexual slavery as a violation of the IHL. Here, it is striking
that feminists persistently sought a multifactorial standard that would, in
actual litigation, require lavish, detailed testimony about and adjudication
of complex circumstances. This was precisely the opposite strategy to the
one they adopted in rape and rape-as-torture, where they usually sought
to establish conclusive rules. Clearly GFeminism makes no fetish of rules
or standards. But it is clear that the maximum sovereigntist prohibition
motivated GFeminists both times. And the debates as I understand them
so far are just as indifferent as the rape effort to the multiple and complex
ways in which the enslavement standard might operate in an IHL regime
159
160

See Engle, Feminism and its (Dis)contents, supra note , at 813.


Id. at 814.

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understood in legal realist terms. The possibility that sexual liaisons that
women actually wanted will be held to be slavery leads to the possibility
that IHL, having prohibited sexual enslavement in armed conict, will
through its sheer ineffectivenessintensify or rechannel the violence of
war.
Chantal Thomas
In this Section, I will introduce some concerns relating to initiatives
in global feminism as global governance. Here, I note the tremendous gains that non-state actors have made, and at the same time, I note
the concerns expressed by some commentators that non-state participants
in governance remain insufciently self-aware with respect to the potential problems arising out of their lack of accountability and their disproportionate inuence over less inuential local actors. This lack of selfawareness could be viewed a form of the insufcient acknowledgement of
actual power and of the will to power that Halley describes.
I. Governance Feminism as Global Governance
As Halley notes, the participation of the feminist movement in establishing war crime tribunals and combating sex trafcking marks feminism as
a major participant in the phenomenon of new governance. A host of
scholars have observed the rise of new governance as an important trend
away from top-down regulation in which the state is the only player and
toward a more uid interaction between state actors and non-state actors
in the formulation and enforcement of norms.
Global governance literature, like new governance literature, highlights the participation of non-state actors in formulating laws and policies.161 Non-governmental organizations have achieved sweeping increases
in both formal and substantive contributions to international law. The
United Nations, for example, has formally recognized the right of NGOs
to participate in a variety of lawmaking and administrative contexts.162
The U.N. has also explicitly identied NGO participation as an important
criterion of decision making under its auspices.163 Other international bodies, such as the World Trade Organization, have proven less welcoming

161 See, e.g., Steve Charnovitz, Two Centuries of Participation: NGOs and International
Governance, 18 Mich. J. Intl L. 183 (1997); Julie Mertus, From Legal Transplants to Transformative Justice: Human Rights and the Promise of Transnational Civil Society, 14 Am.
U. Intl L. Rev. 1335 (1999).
162 See Charnovitz, supra note 161, at 26667 (describing processes for establishing consultation status of NGOs to U.N. bodies).
163 See Indep. Working Group on the Future of the United Nations, The United
Nations in its Second Half-Century 36 (1995), available at http://www.library.yale.edu/
un/un1e3co.htm.

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of NGOs, but still grant at least limited access to negotiations and dispute
resolution.164
In addition to recording this fundamental shift in regulatory style,
governance literature is also quite often normative. Social theorists Jurgen
Habermas and Richard Held have argued that participation by non-state
actors in international lawmaking contributes importantly to preserving
democratic politics from the corrosion of globalization.165 James Rosenau, a
founder of the global governance perspective, has denoted glocalizationthe fragmentation and recombination of political movements and
alliancesas presenting crucial opportunities for the enhancement of democratic participation in the increasingly turbulent plane of international
affairs.166
There is much to support the argument that increased participation
of NGOs has in fact improved the accountability, efcacy, and justice of
international law and policy. In public health, for example, NGOs have
been instrumental in transmitting crucial information and in lobbying for
important changes in policy such as access to patented pharmaceuticals.
In international nance, NGOs have played an important role in pressing
for the forgiveness of debt owed by developing countries. The international
human rights and environmental movements arguably would not exist without NGOs.
Feminists have acquired a central role in the operation of NGOs. They
have succeeded in bringing issues to the table that likely would never
have obtained a hearing otherwise. These changes are desirable. As a part
of global governance, GF has played an important and often, in my view,
benecial role.
Amidst all of the enthusiasm for the governance model, however,
some commentators have called for a reexamination of the role of nonstate actors in global regulation. Against the view that NGO participation
enhances democratic accountability in international law, these commentators question the democratic accountability of NGOs. NGO activity, the
argument goes, can have the effect of skewing international debates toward the concerns of afuent, Western groups that can absorb the costs of
effective organization at the international level.167 This skewing effect arises

164 The WTO has allowed NGOs to submit amicus briefs to dispute resolution processes (although this process is strictly limited in practice); and also grants limited access to
NGOs to observe plenary negotiations.
165 Jrgen Habermas, Legitimation Crisis (1973); Jrgen Habermas, Between
Facts and Norms: Contributions to a Discourse Theory of Law and Democracy
(1998); David Held, Democracy and the Global Order: From the Modern State
to Cosmopolitan Governance (1995).
166 E.g., James N. Rosenau, Along the Domestic-Foreign Frontier: Explaining
Governance in a Turbulent World (1997); James N. Rosenau, Governance in the TwentyFirst Century, 1 Global Governance 13 (1995).
167 William F. Fisher, Doing Good? The Politics and Antipolitics of NGO Practices, 26
Ann. Rev. Anthropology 439 (1997).

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in part because local groups recharacterize their own struggles in order to


conform to the expectations and terms of inuential NGOs.168
Other scholars have suggested that the problem with NGOs goes further than a lack of democratic accountability, touching on a deeper complicity between NGOs and the status quo they purport to reform. Cox, for
example, has argued that NGO participation has arisen in the midst of a
neoliberal nebuleusean atmosphere of market-oriented policy that has
led to the dominance of market-liberalizing forces globally.169 Critical social constructivists such as John Boli and George Thomas have further
asserted that the connection between NGOs and market dominance is
deeply embedded in a conceptual framework of liberalism that provides
the normative support for both trends.170 Because these scholars eschew
neoliberalism as insufciently attentive to distributive justice, they question the justice of this potential legitimation effect of NGOs.
Particularly in a global context, against a backdrop of increasing economic globalization and increasing global economic inequality, ongoing
assessment of the consequences of GF seems critically important to the
long-term success of feminist efforts. This Section ventures a methodology for assessing the consequences of feminist efforts in sex trafcking law
and policy.171 A legal realist assessment of GF highlights the importance
168

Clifford Bob, Merchants of Morality, 129 Foreign Poly 36, 3738 (Mar.Apr.

2002):
In a context where marketing trumps justice, local challengerswhether environmental groups, labor rights activists, or independence-minded separatistsface
long odds. Not only do they jostle for attention among dozens of equally worthy
competitors, but they also confront the pervasive indifference of international audiences. In addition, they contend against well-heeled opponents (including repressive governments, multinational corporations, and international nancial institutions) backed by the worlds top public relations machines. Under pressure to sell
their causes to the rest of the world, local leaders may end up undermining their
original goals or alienating the domestic constituencies they ostensibly represent.
Moreover, the most democratic and participatory local movements may garner the
least assistance, since Western NGOs are less likely to support groups showing internal strife and more inclined to help a group led by a strong, charismatic leader.
Perhaps most troubling of all, the perpetuation of the myth of an equitable and
benecent global civil society breeds apathy and self-satisfaction among the industrialized nations, resulting in the neglect of worthy causes around the globe.
169 Robert Cox, Structural Issues of Global Governance, in Approaches to World
Order 237 (1996).
170 John Boli & George Thomas, Constructing World Culture: International
Non-Governmental Organizations Since 1875 (1999).
171 Max Weber, Politics as a Vocation, in The Vocation Lectures, 32, 83 (David Owen
& Tracy B. Strong eds., Rodney Livingstone trans., 2004):

[A]ll ethically oriented action can be guided by either of two fundamentally different . . . maxims: . . . an ethics of conviction or an ethics of responsibility. . . .
In the former case, this means, to put it in religious terms, A Christian does what
is right and leaves the outcome to God, while in the latter you must answer for
the (foreseeable) consequences of your actions. (internal citation omitted).

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of identifying the background conditions and distributive consequences of


the legal rules that have emerged from anti-trafcking efforts.
II. Distributional Consequences
In exercising their inuence within the global governance of sex trafcking, governance feminists (GFeminists) may not be paying enough
attention to the background rules and conditions, and the resulting distributional consequences, of the laws and administrative practices they condone.
In the area of sex trafcking, important unintended consequences of
maintaining the status quo are three. First, the contribution of anti-trafcking efforts to the the border control agendas of statesparticularly rich
statesat the expense of delivering actual aid to victims of trafcking, may
actually harm the very people GFeminists intended to help; second, the
focus of anti-trafcking efforts on certain narrowly dened harmful practices, all relating to sex work/prostitution, to the exclusion of other labor
practices affecting migratory workers, may serve implicitly to legitimate
the conditions of non-sex-based migrant labor; and third, abolition produces black and gray markets which may be more harmful to some workers; reformers, who have been quite indifferent to these consequences,
may actually have exacerbated them.
Men are victims of trafcking, usually not, however, of sex trafcking.
But even if we focus only on non-sex-based migrant work, we are not faced
with a question of whether to carry a brief for F rather than M:172 because
women are disproportionately poor and vulnerable, these harmful practices
probably disproportionately affect women. Thus, even for those committed to carrying a brief for F specically, these non-sex-based harmful practices should, I think, get just as much attention as sex trafcking. Certainly
feminists should be concerned about ways in which their reforms may
generate more vulnerability for women in sex trafcking.
Border control. The legal instruments aimed against trafcking in
persons, at both the international and the U.S. national levels, devote signicant attention to shoring up territorial boundaries of receiving states.
Characteristically, the U.N. Trafcking Protocol requires the repatriation
of victims173 but only encourages support services for those victims.174

172 Janet Halley, Split Decisions: How and Why to Take a Break from Feminism (2006).
173 2001 Trafcking Protocol, supra note 2, Art. 8(1) (The State Party of which a victim of trafcking in persons is a national or in which the person had the right of permanent
residence at the time of entry into the territory of the receiving State Party shall facilitate
and accept, with due regard for the safety of that person, the return of that person without
undue or unreasonable delay.).
174 Id. Art. 7(3) (Each State Party shall consider implementing measures to provide
for the physical, psychological and social recovery of victims of trafcking in persons.).

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Within the United States, the VTVPA repatriates victims unless they
qualify for nonimmigrant legal residence under the VTVPAs T visa
provision.175 The VTVPA, however, only provides for 5000 such visas.176
If 50,000 or more are trafcked, as the VTVPA itself estimates,177 this does
not seem to be a proportional response. Moreover, the provision of the T
visa is contingent on the victims obtaining a certication of cooperation
with law enforcement178 to prosecute the trafcker. Congress itself has
explicitly recognized that victims were having difculty attaining even
those T visas that have been authorized.179
The U.S. governments oft-voiced concern about trafcking victims
suffering is belied by the indifference that those victims face on the ground.
The paltry response to helping victims of trafcking could be viewed as
indirect evidence that victim assistance does not, in fact, take priority from
the governments perspective. The energetic response to prosecution of
trafckers who bring these victims into the United States, coupled with
the repatriation of the victims themselves, indicates that border control
vastly trumped victim assistance as a policy priority.
In the process of participating in the formulation of U.S. and international anti-trafcking law, GFeminists might not have fully anticipated the
importance of border control measures for victims of trafcking. It is possible that a relative inattention to the background conditions of displacement
and migration generated a concomitant relative inattention to the status of
these women as migrants. Here is how I reconstruct the story. The battle
among GFeminist groups over consent probably not only distracted signi175 Victims of Trafcking and Violence Protection Act, supra note 3, 107. Section
107 allows for nonimmigrant status on T visa or continued presence grounds, which
can be adjusted to permanent residence status if the victim is adjudged to be likely to suffer severe harm on removal from the United States.
176 Id.
177 Id. 102(b)(1) (Findings stating that approximately 50,000 women and children
are trafcked into the United States each year).
178 Id. 107 (conditioning protection and assistance of trafcking victims, inter alia,
on certication by the Secretary of Health and Human Services after consultation with the
Attorney General and the Secretary of Homeland Security, that they have shown themselves to
be willing to assist in every reasonable way in the investigation and prosecution of trafcking, and dening investigation and prosecution to include assisting in the identication,
location, apprehension of trafckers and testimony against them).
179 TVPA Reauthorization Act of 2003, H.R. 2620, 108th Cong. 2 (2003) (Findings
stating that victims of trafcking have faced unintended obstacles in the process of securing needed assistance provided for under the TVPA); id. 4 (authorizing immigration authorities to consider statements from local and state for certication requirement); id. 6
(requiring the attorney general to submit to Congress regular reports on the number of trafcking provisions who have received visas and related assistance authorized by the TVPA).
On June 3, 2005, the U.S. State Departments Ofce to Monitor and Combat Trafcking
in Persons reported that, in scal year 2004, the Department of Homeland Securitys Vermont Service Center received 520 applications for T non-immigrant status, approved 136,
denied 292, and held over 92 for further consideration. See http://www.state.gov/g/tip/rls/
tiprpt/2005/46618.htm (last visited Apr. 25, 2006). Assuming the Vermont Service Center is
where all this processing is concentrated (the report does not indicate any other processing
center), T visas were clearly not reaching their target population.

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cantly from advocacy for strong commitments to concrete protections for


sex laborers and other trafcked persons, but also obscured from view the
strong political push to strengthen border control until it was too late. Elsewhere I have rendered this dynamic as follows:
Table 1: Dynamics and Outcomes in the Trafcking
Protocol Negotiations
Position

Border Control /
Repatriation

Voluntary Adult
Sexual Labor

Sovereigntist

Strong Yes

Unclear

Structuralist

Weak No

Strong No

Individualist

Weak No

Strong Yes

Result

Yes

Unclear

In this rather grim account, the NGOs involved in reform of the Protocol and in the drafting of the VTVPA were so busy ghting over discursive
control of womens bodies that they forgot or did not see that one of the
primary effects of these instruments will be to increase the control of the
state over the location of those bodies.
Legitimation Critique. By focusing on sex trafcking, the anti-trafcking discourse runs the risk of legitimating by implication other practices.
For example, non-sexual trafcking, although denitionally contemplated,
remains out of focus in many of the implementation efforts under antitrafcking law.180 The U.S. State Department has explained that this imbalance stems in part from the greater difculty in tracking non-sexual
trafcking.181 However, there are numerous international organizations and
non-governmental organizations whose purpose is to do precisely that,182
and their greater involvement could help to minimize this difculty in measuring this vast set of additional phenomena.
In addition to non-sex trafcking, non-trafcking migrant labor may
too often escape the attention of governments and advocates.183 The U.S.
180 U.S. Dept of State, Trafcking in Persons Report, supra note 30, at 243
(noting that in scal year 2004, the Department of Justice initiated prosecutions against
fty-nine trafckers, and all of those cases involved sexual exploitation).
181 Id. at 6 (noting that labor exploitation within territories can be hard to track).
182 E.g., the International Labor Organization.
183 Although the United Nations established a Protocol on Migrant Smuggling, for example, much less appears to be devoted toward the institutionalization of that protocol and
the development of surrounding discourse. For example, the U.N. Ofce on Drugs and Crime
(UNDOC) has established a Global Programme Against Trafcking in Human Beings in
furtherance of the Trafcking Protocol; a Global Programme Against Corruption in furtherance of the U.N. Convention Against Corruption; and a Global Programme Against Transnational Organized Crime for the Convention Against Transnational Organized Crime. No

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State Departments denition of trafcking, already narrower than the U.N.


version, excludes some of the most egregious abuses of migrant workers.
For example, in Central Texas, migrant advocacy groups have devoted
increasing energy to representing undocumented migrant workers who
go intentionally uncompensated by their employers.184 These advocates
describe such practices as enslavement because workers are not compensated for their labor. Moreover, employers take advantage of the vulnerability these workers suffer as a result of their undocumented status.
So far, under State Department rules, if the employer simply chooses
not to pay workers without threatening to turn them into immigration
authorities, he is not considered to be trafcking. Although the coercion is dened in the relevant texts to include either physical coercion or
abuse of the law or legal process,185 the State Department has stated that the
latter category includes only active abuse,186 such as explicit threats.187
Practices such as these allow the employers to exploit the background rules
shaping the worker-employer relationship, without directly engaging in
legally cognizable coercion.
Thus, the denition of coercion in anti-trafcking law may perform
a legitimating role for non-trafcking, but nevertheless abusive, migrant
labor practices in much the way that the denition of duress in contract
law can permit and thus implicitly legitimate opportunistic or abusive
employment practices that fall short of the denition.188
Exacerbation of the problem. Paradoxically, making prostitution illegal
may tend to ensure that it is coercive in fact, by increasing the vulnerability of women who are prostitutes, and of entrenching the institutions of
trafcking in part because of their intensied vulnerability.189
equivalent program has been established, however, for the Migrant Smuggling Protocol. See,
e.g., U.N. Ofce on Drugs and Crime, Crime Programme, http://www.unodc.org/unodc/en/
crime_cicp.html (describing various programmatic efforts of the UNODC).
184 E.g., the work done by the Transnational Worker Rights Clinic of the University of
Texas Law School (co-directed by Professors Sarah Cleveland and Bill Beardall, working
with the Central Texas Immigrant Worker Rights Center and the Equal Justice Center (EJC) in
Austin).
185 The U.N. Trafcking Protocol denes trafcking to include the the abuse of power
or of a position of vulnerability; the United States denes it to include the abuse or threatened abuse of law. See 2001 Trafcking Protocol, supra note 2. See also Victims of Trafcking and Violence Protection Act, supra note 3, 103(2) (dening coercion to include the
abuse or threatened abuse of the legal process); id. 112 (dening forced labor to include
the abuse or threatened abuse of law or the legal process).
186 U.S. Dept of State, Trafcking in Persons Report, supra note 30 (explicitly
excluding such practices).
187 Threatening to turn migrants into [sic] the authorities for immigration violations is
an explicit example in the State Department literature of a potentially fear-inducing form
of coerci[on]. Id. at 15.
188 E.g., Jay Feinman & Peter Gable, Contract Law as Ideology, in The Politics of
Law 373 (David Kairys ed., 1990). The legitimation function also delegitimates commercial sex, denitionally or in implementation, as conceptually illegitimate. See Chantal Thomas,
International Law Against Sex-Trafcking, in Perspective, supra note 32, at 2829.
189 See supra Introduction.

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Economistic literature tends to show that abolition of illicit products


and services can have the effect of exacerbating the harms they cause. Prohibition can increase the market equilibrium price, which increases the incentives for some suppliers (rather than deterring them).190 Although the
prospect of criminal punishment does deter some suppliers, it can also have
the effect of shifting rather than reducing supply from small-scale or decentralized suppliers to highly organized ones that can take advantage of
economies of scale to absorb the costs of deterrence and benet from the
black market price premium.191
The U.S. Congress has produced ofcial Findings stating that [t]rafcking in persons is increasingly perpetrated by organized, sophisticated
criminal enterprises.192 It is unclear, however, whether lawmakers have recognized the probable causal connection between prohibition and organized crime. The effect of shifting supply into organized crime not only
means that the intended effect of deterrence is thwarted, but also that the
harms associated with trafcking may be exacerbated. Organized crime
may be more violent and more coercive than smaller-scale operatives.
The fact that prostitution is illegal in many countriesa status not required by the Protocol or the VTVPA itself but effectuated through supporting documents such as funding criteria maintained by the U.S. government both for other states and for NGOs193can further exacerbate the
vulnerability of potential trafcking victims.194 Threatening to turn migrants into the authorities for immigration violations is an explicit example
in the State Department literature of a potentially fear-inducing form of
coerci[on].195 By this logic, threatening to turn prostitutes in to authorities is also a form of coercion, but U.S. authorities seem not to have contemplated that this coercive dynamic might exacerbate the harms of trafcking that the VTVPA and related efforts seek to reduce.196
In addition to this active form of coercion, which would appear to meet
even the formal requirements of the denition, there is the more diffuse
but perhaps equally harmful possibility of passive coercion. I am thinking here of the space opened for many playersparents, husbands, customers, pimps, landlords, police, prison guardsto benet from a legal sys190 Chantal Thomas, Illegal Markets and International Trade, Fordham Intl L.J. (forthcoming 2006).
191 Id.; see also Curtis Milhaupt, The Dark Side of Private Ordering: An Institutional
and Empirical Analysis of Organized Crime, 67 U. Chi. L. Rev. 41 (2000).
192 Victims of Trafcking and Violence Protection Act, supra note 3, 102(b)(8) (Findings).
193 See supra Halley Part One.
194 See the work of Hila Shamir and Prabha Kotiswaran, infra, for further discussion of
this point.
195 U.S. Dept of State, Trafcking in Persons Report, supra note 30.
196 One solution that is consistent with the abolitionist approach but cognitive of this
danger is to criminalize the procurement of prostitution while decriminalizing its supply,
so that johns and pimps are criminally liable but prostitutes themselves are not. For a
discussion and case study of this approach, see infra Shamir Part Two.

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tem that makes prostitutes vulnerable without the need for explicit threats
by trafckers. This passive coercion, in which many different players but
especially employers take advantage of the coercion inherent in the background rules, resembles and extends the exploitation of vulnerable workers more generally as discussed in the preceding Section.197
III. By Way of Conclusion
The discursive and practical formulation in much of GF too readily associates the incidence of coercion with commercial sexwhether to endorse (as with structuralists) or to oppose (as with individualists) that association. As the foregoing has tried to demonstrate, coercion in commercial life affects women in many varied and subtle ways, many of which are
simply not captured in the existing discourse. The defense of specialization, here, seems insufcient: if we are carrying a brief for F, attention to
the impact of background conditions, distributional effects and unintended
consequences of the contemporary anti-trafcking legal framework should
ensue. GF analytically precludes itself from noticing many unintended
consequences of its favored reforms.
How to redress the rules to minimize these unintended consequences?
One way would be to insist on the discursive formulation of trade by
women as a legitimate category of commercial sex. It might actually help if
we insisted on maintaining conceptual space for the possibility of voluntary commercial sex. While this space is created in the most recent legal
denitions, it has been effectively expunged in much of the practical administration of anti-trafcking initiatives.198 Legalizing prostitution is repugnant to manysome because they believe in the inherent degradation
of it (on either old patriarchal or new feminist grounds); others because they believe that the distributional consequences will actually be
worse for women under legalized prostitution. But if prostitution is not to
be legalized, then anti-trafcking initiatives must address the background
rules and conditions much more than they are doing already, to ensure
that the intention of reducing trafcked prostitution and of protecting vulnerable workers bears out in practice.
The background rules and conditions could also be redressed in another way, which is to pay more attention to non-sex trafcking and to nontrafcking labor abuses. If there is too much overlap between commercial sex and sex trafcking, there is not enough with respect to trafcking and non-sex employment abuses. Here, the critical move might be
to shift directions again, this time away from conceptual dichotomy back
to conceptual overlap. Non-sexual commerce can be coercive, and it can be
coercive in ways that are not necessarily contemplated in GFeminist deni197
198

See supra Introduction.


See supra Halley Part One.

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tions of coercion. For those concerned with combating actual harms, this
is a problem that has to be addressed.
These recommendations are both moot and a tall order. They are moot
because the current legal denitions actually recognize both of these points.
But they are a tall order because the practical application of those denitions
often ignores them, and because actually getting the practical application
to do so will require a signicant broadening of effort and a real rethinking of possibilities.
Hila Shamir
I have been studying the cases of regulation of sex work and sex trafcking in three national contexts: the Netherlands, Sweden, and Israel. My
research proposes that each of the two feminist legislative approaches to
sex work that were at work in these national casesabolitionism on the one
hand and legalization on the otherlead to some gains to some groups, but
also to harmful unintended consequences to other stakeholders. The close
look at these very different legal regimes in these national contexts suggests that Governance Feminism (GF)well-intentioned as it may beis
pre-loaded with a strong tendency to overlook or underplay the costs it
might cause to some and to x its gaze on the benets gained by others.
An analysis of the feminist positions leads me to argue not that feminism
inevitably or inherently ignores these costs, but that overlooking these costs
has played an important part in traditions of feminist discourse.
In my research, I argue for the tremendous value of an inclusive distributional analysis to policy formation, one that encompasses the variety
of affected interests and explores costs as well as benets to all stakeholders. Yet, naturally, one cannot presume to foresee all the unintended
consequences of a certain legal regimereality often proves to be more
complex than imagined, and many results are extremely hard to predict.
But I would argue that some consequences are foreseeable and that it is thus
crucial to invest energy in predicting and anticipating the distributive effects of a particular regime as much as we can. Instead of focusing on the
benets of a suggested policy to one group, we should attempt to engage
in a wider analysis of a policys effectsnegative and positiveon various
groups and allow these pragmatic insights to inuence our policy proposal.
Accordingly, my research is, methodologically, a distributional analysis
of the three aforementioned national regimes of sex work. In such an analysis I map out the various stakeholders who are impacted by the legal regime: not only local and migrant sex workers, but also women who stopped
working as sex workers due to a changing legal regime, men who buy sex
services and men who do not, the women who live with the men who buy
sex services and those who do not, and the ripple effects caused by women
entering or exiting the sex industry on other labor markets. I sketch the
effect of a certain legal regime on the interests of various stakeholders in-

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volved, using a bargaining model to extract possible changes in the actors


market power. Many questions that are often left unexplored in feminist
literature become signicant in such an analysis: this analysis not only foregrounds the well-being of different groups of men and women, but also
focuses on the effect of regulation on structure of markets, uctuating
prices, and employment alternativesall crucial elements in understanding the welfare of different stakeholders.
In the following pages I will conduct a narrower distributional analysis,
focusing particularly on the effect of various legal regimes of sex work on
the well-being of sex workers, local and migrant. Rather than examining
a wider range of stakeholders who are often outside the scope of feminist
explorations, I will focus on women sex workers, a group that is at the center
of the traditional concern of feminist policy makers who engage with the
regulation of commercial sex. Thus, the distributional analysis I will attempt to briey perform in this Section does not aim to take into account
all relevant stakeholders, but to realize the full effect of feminist reforms
on sex workers themselves, exploring the costs as well as the benets of
the different regulatory regimes.
I. Three Regulatory Regimes of Commercial Sex
Sweden and the Netherlands are usually viewed as two countries in
which the implemented legal regimesabolitionism in Sweden and legalization in the Netherlandsmost closely adhere to feminist agendas. My
analysis of these regimes offers the proposition that each creates a different distribution of power among social actors; each offers signicant gains
to some, but also has some chronic downsides for others, gains and down
sides that are typical of prohibitive and permissive approaches. This analysis
does not assume that the Swedish and Dutch legal regimes have a unilateral effect on social realities and markets, but, as our introduction suggests,
that various degrees of intensity of enforcement are exhibited by different
authorities in each national context. While in my study of the Israeli hybrid regime below I pay more attention to these mediating factors, the
possibility of regulative inconsistency should be kept in mind in my less
detailed discussion of the purer regulative regimes of Sweden and the
Netherlands. Nonetheless, these two regimes are highly committed both
in theory and practice toward enforcement of their proclaimed feminist
policies, and thus the study of these two opposite feminist regimes provides an opportunity to observe how GF, operating in very different ways,
reaches similar unintended results. The following are some aspects of my
research that led me to this observation.

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A. AbolitionismThe Swedish Model


Since 1999, purchasing or attempting to purchase sexual services has
199
been an offense in Sweden. Sweden is the rst country in the world to
criminalize demand for prostitution and is celebrated by structuralists200
for its commitment to the abolition of prostitution and, consequently, the
201
elimination of sex trafcking. Seeing prostitution and sex trafcking as
one and the same delayed the treatment of trafcking as a separate phenomenon that requires special efforts and resources. Trafcking for the
purpose of prostitution was criminalized as late as July 2002, and only in
2004 was a legislative amendment passed extending limited rights (residence permits, limited to the length of the trial, that include health care
and some welfare rights) to trafcking victims willing to testify against their
trafckers.
Swedish authorities proclaim that the new legislation led to a signi202
cant decrease in prostitution. Moreover, the authors of various studies
propose that Sweden became an undesirable trafcking destination because
203
of the high risk for customers and trafckers. However, there is no con204
clusive evidence that trafcking has actually decreased.
Individualists in Sweden are highly critical of the outcomes of the re205
form. They argue that sex work and trafcking did not disappear but rather
206
went deeper underground and merely changed form. The effect of this,
individualists claim, is worse working conditions, lower pay, greater de207
pendence on pimps, and higher health risks to sex workers.

199

Lag om frbud mot kp av sexualla (Svensk forfattningssamling [SFS] 1999: 408)


(Swed.). For an unofcial translation of the act, see Act Prohibiting the Purchase of Sexual
Services (1999: 408), available at http://www.sweden.gov.se/content/1/c6/02/56/31/e0d64374.
pdf. For detailed information about the bill, see Fact Sheet about the 1999 Swedish Law on
Prostitution, http://www.prostitutionresearch.com/swedish.html (last visited Apr. 25, 2006).
200 I refer to individualists and structuralists in the sense Chantal Thomas uses these
terms in Part One of this discussion. See supra.
201 Janice Raymond, Ten Reasons for Not Legalizing Prostitution and a Legal Response
to the Demand to Prostitution, in Prostitution, Trafcking and Traumatic Stress 315,
32627 (Melissa Farley ed., 2003); Gunilla Ekberg, The Swedish Law that Prohibits the
Purchase of Sexual Services, 10 Violence Against Women 1187, 1191 (2004).
202 Raymond, supra note 201, at 327.
203 See id.; Melissa Farley, Prostitution, Trafcking and Traumatic Stress xi, xvi
(2003); Ekberg, supra note 201, at 120001.
204 Ekberg, supra note 201, at 1200. On the problem with evidence proving the decrease in
prostitution in Sweden, see Ministry of Justice and the Police (Norway), Legal Regulation of the Purchase of Sexual Services 1819 (2004), available at http://odin.dep.
no/larkiv/232216/Purchasing_Sexual_Services_in_Sweden_and_The_Nederlands.pdf.
205 Press Release from the First Nordic Conference for Sex Workers in Oslo (Oct. 27
28, 2004), http://www.bayswan.org/swed/nordicpros.html.
206 Petra Ostergren, Sexworkers Critique of Swedish Prostitution Policy (posted Feb. 6,
2004), http://www.swop-usa.org/news/Swedish_critique_world_news.html.
207 Id.; see also Rosinha Sambo, Address by Rosinha Sambo to the Taipei Sex Worker
Conference 2001 on the Situation of Sex Workers in Sweden, http://www.bayswan.org/swed/
rosswed.html (last visited Apr. 25, 2006).

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The Swedish regime is seen by structuralists as an ideal feminist regime and the legal solution to the problems of prostitution and trafcking,
208
assuming that it will manage to eliminate both phenomena. But prostitution and trafcking have not disappeared, and it is not certain that the
Swedish policy will eventually lead to their successful elimination. It might
be true that the sex market shrank as a result of the new regime and that
some women left the sex industry. There is not enough available data about
the fate of ex-sex workers (local and migrant), their new social status, economic position, and working conditions to determine the full positive or
negative effects of the legal regime on their well-being. Even under the assumption that their situations have greatly improved, for the time being it
is clear that the reform made the life of the remaining sex workers (local
and migrant) much harder.209
Moreover, Swedens approach to prostitution overlooks the special
needs of trafcked women. Sweden has low rates of convictions in trafcking210 and takes very little responsibility for the well-being, rehabilitation, and reintegration of victims of trafcking. The U.S. Trafcking in
Persons Report points to an improvement in Swedens victim assistance
between 2004 and 2005. However, this report also notes that while in 2004
ten to fteen victims of sex trafcking received shelter and assistance, in
2005 there was an incredibly small increase in the number of women assisteda total of twenty women received government assistance.211 This

208 Raymond, supra note 201, at 327; Marie De Santis, Swedens Prostitution Solution:
Why Hasnt Anyone Tried it Before?, Womens Justice Center, http://www.justicewomen.
com/cj_sweden.html (last visited Apr. 25, 2006).
209 An administrative report from 2001 about prostitution in the city of Malmo (Sweden) says Those prostitutes who are still working in street prostitution experience a tougher
existence . . . prostitutes lower their prices, are prepared to take more clients, and are prepared to give the service without protection. The health authorities express a fear of a dramatic development in a negative direction for the health of the prostitutes and the spread of
venereal disease. This report, and others that conrm this assessment, are quoted in Ministry of Justice and the Police (Norway), supra note 204, at 1314.
210 Swedens low conviction rate in crimes of trafcking illustrates that a discrepancy
between the law in the books and the law in action can be found in the Swedish regime as
well. Although the regime is motivated by a structuralist feminist position, according to which
there can be no meaningful consent to prostitution, judges often view a womans consent
to sex work as canceling the improper means requirement that must be proven to achieve
a trafcking conviction. See U.S. Dept of state, Trafcking in Persons Report, supra note 30, at 205 (Although initial consent would appear to be irrelevant under the antitrafcking law, in practice, judicial interpretation of the improper means criteria makes it
difcult to obtain convictions under the law.).
This is yet another example that pure abolitionist regimes are rare, and that even the
purest of intention leads to unintended consequence when the feminist regime is implemented and interpreted by various state agencies following agendas that might be disharmonious with the feminist one.
211 Id. at 206. The low numbers of assisted women cannot be explained solely by low
numbers of migrant sex workers in Sweden. Though the numbers are signicantly lower than
in the Netherlands, in 2000 Swedish police gave a moderate estimate of 400 foreign women in
prostitution in Sweden, while some sex workers organizations estimate that the real number is several times higher.

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approach might change under a new national action program that is underway.212 Until then, Sweden can be characterized as promoting a sovereigntist
213
agenda: tightening border control and enhancing police activity. The strict
abolitionist regime protects some women but exposes others to the harms
that accompany illegality, including marginalization and stigmatization.
B. LegalizationThe Dutch Model
In 2000, the general ban on brothels was lifted in the Netherlands so
that operating a commercial organization of (voluntary) adult prostitution
was decriminalized.214 As a result, in the legalized segment of the sex industry, sex workers have access to pension schemes, social security benets,
and state organized health care. Sex workers also gained the right to sue
in courts for violations of their employment or service contracts. The legality of sex work also introduced various interventionist obligations on sex
workers, such as the duty to carry identication documents that until 2005
did not apply to the population at large.215
The Dutch sex work regime takes a decentralized administrative approach, based on municipal licensing of sex establishments. In virtually
all municipalities, sex work is allowed only in licensed businesses. Regulation of sex establishments is achieved through various local authorities
in addition to the police, such as the re department, the building control
department, municipal medical and health services, and the tax and customs administration.216 Licensing requirements impose various restrictions
on the operation of sex establishments by regulating the location and hours
of operation, determining who can be employed, prohibiting abuse and coercion, and so on. Violation of these restrictions can lead to various penalties, ranging from nes to withdrawal of the business license. Among other
restrictions, sex work employers are not allowed to employ non-EU nationals.217 If a migrant sex worker is thought to be a victim of trafcking,
212 The national action program aims to formulate proposals for further measures to combat prostitution and trafcking, proposals to increase protection and aid to victims of prostitution and trafcking, to conduct a survey of penal measures and of the relevant developments within the justice system, police and social services, and propose special measures
to counteract the demand for sex work. For a description of the program, see http://www.
sweden.gov.se/sb/d/4096/a/26488 (last visited Apr. 25, 2006).
213 For a discussion of the sovereigntist agenda, see Thomas, supra note 32, at 5758.
214 See Trafcking in Human Beings: Third Report of the Dutch National Rapporteur,
supra note 88, at 13.
215 See Compulsory Identication, http://minbuza.nl/default.asp?CMS_ITEM=29564267
E75D4C2588CEDCD140433EA9X3X48030X2 (describing the Dutch Compulsory Identication (Extended Scope) Act, which began being enforced on January 1, 2005) (last visited
Apr. 25, 2006). Since the passage of this act, the duty to carry identication documents applies
to the population at large.
216 See Trafcking in Human Beings: Third Report of the Dutch National Rapporteur,
supra note 88, at 13.
217 It should be noted that EU citizens may work in the Netherlands (in any type of work)
without a special work permit. However, there is no recognized way for a non-EU citizen

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she receives a three-month visa to consider whether to testify against her


trafckers. If she decides to testify, she is granted a limited residency permit
(including the right to work and eligibility for various benets such as accommodation, medical care, and legal assistance) that can be prolonged
218
until the end of the trial, at which stage she is deported. In 2002, 147
women received this status, and there have been moderate annual increases since then.219
Individualists generally support the direction of the Dutch regime,
though some criticize it for the harm it inicts on non-EU migrant sex workers, making them second class workers within the underclass of sex work220
ers, or for the excess regulation sex workers have to endure. The harshest criticism of the legalization regime in the Netherlands naturally comes
from structuralists. Structuralists claim that the Dutch case proves that
legalization does not lead to the empowerment of prostitutes but merely
to the expansion of their exploitation, making the Netherlands a safe and
221
lucrative destination for trafckers.
Although the Dutch case is the closest existing example of the implementation of the individualist regime, it is far from realizing the individualist ideal, either due to disharmonious implementation by different
agencies within the different municipalities, a lack of collaboration between
administrative authorities and sex businesses,222 or the on-going exclusion
and marginalization of many sex workers.223 The Dutch regime manifests
an important individualist failings: harm to (non-EU) migrant sex workers. Given that legalization will always exclude some workers (i.e., will always maintain an illegal sector), the Dutch case helps to clarify the fact that
to obtain a working permit to work as a sex worker in the Netherlands.
218 See U.S. Dept of State, Trafcking in Persons Report, supra note 30, at 164
(describing section B-9 of the Aliens Act Implementation Guidelines as well as regulations
enacted in April 2005 that allow B-9 permit holders the right to work).
219 See Trafcking in Human Beings: Third Report of the Dutch National Rapporteur,
supra note 88, at 61.
220 Jo Bindman & Jo Doezema, Redening Prostitution as Sex Work on the International
Agenda (1997), available at http://www.walnet.org/csis/papers/redening.html#3d.
221 Raymond, supra note 201, at 317. The Dutch government denied these claims. The
Rapporteurs 2005 report accepts that there was an increase in prostitution since the ban
was removed, but not an increase in trafcking. Trafcking in Human Beings: Third Report
of the Dutch National Rapporteur, supra note 88, at 83, 91.
222 The regulatory role of the various administrative bodies within the municipalities sometimes leads to disharmony in standard setting and enforcement that in turn leads to diverging working conditions for sex workers. Further, some municipalities gained the trust of prostitution businesses and sex workers but some did not. Municipalities that failed in gaining
this trust are generally less successful in implementing the licensing system, leading to worse
working conditions of many sex workers in the municipality. See Ministry of Justice and
the Police (Norway), supra note 204, at 3132, 4244. These failures illustrate the difculty
in reaching regulative consistency in a decentralized regime, and once again proves the difculty of any feminist (or other) regulative regime to live up to its proclaimed normative agenda
when it comes in touch with social and legal realities.
223 Bindman & Doezema, supra note 220 (stigma, and with it marginalization and exclusion from human rights protection, continues to be a signicant aspect of the lives of sex
workers in the Netherlands.).

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the challenge such regulation faces is really one of distribution between


differently situated groups of sex workers. The Dutch case shows that even
after legalization, an illegal sector remains, and those who work in it suffer the harms of working in an underground, unregulated market.
This close look at the two legal regimes suggests that, although each
regime inuences sex work and trafcking differently, both are awed in
similar ways. The Swedish abolitionist regime is paternalistic and harmful to
sex workers, exposing them to further marginalization and exploitative
working conditions since the industry is pushed underground.224 The Dutch
legalization regime leads to excessive regulation of sex workers and further marginalization of migrant sex workers, creating an underclass within
the already stigmatized and vulnerable class of sex workers, and possibly
increases sex trafcking. It seems that both feminist regimes carry costs
as well as benets; neither is necessarily benecial to women and denitely
not to all women.
One cannot expect policy makers to be able to foretell all possible distributive results. For example, it could have been hard to anticipate that
the Dutch law would lead to a take-over by a few sex businesses in Amsterdams red-light area, leading to consolidation of the industry. But other
results could have been more easily predicted, such as the micro-regulation
of the sex industry in the Netherlands,225 or the retreat of the illegal parts
of the sex industry (in both countries) to underground operation. It is true
that, since the harms became evident, there have been attempts to provide
some help for the sex workers who bear the costs. In the Netherlands, besides the relatively generous B-9 regulation, the government initiated a
wide-reaching information campaign informing migrant sex workers and
trafcked women of their rights and options, offered Dutch language lessons for former migrant sex workers, and funded various programs in sending countries. Sweden also funded information campaigns and somewhat
improved its protection of victims of trafcking.226 But these efforts are not
as coherent and effective as a reform that accounted for these costs in ad-

224 Some might argue that pushing the regime underground might not necessarily be
harmful to all sex workers, and that some might benet from it, due to, for example, higher
prices for their services. While it is possible that some sex workers nd benets in this situation, research tends to show otherwise: when pushed underground, the industry tends to be
dominated by criminal networks; more intermediaries are involved and sex workers tend to
receive less of the prots; there seems to be an adverse selection toward more violent
clients; working conditions tend to worsen due to constant change of locations and the increased use of less convenient or comfortable locations; and nally, some research suggests that the social stigma attached to prostitution intensies.
225 For some of the problems posed by micro-regulation, see Ministry of Justice and
the Police (Norway), supra note 204, at 3032. For a general discussion of hyper-regulation
of individualist permissive approaches, see Nathaniel Bermans contribution to Subversive
Legacies: Learning From History/Constructing The Future: Round Table Discussion: Subversive Legal Moments?, 12 Tex. J. Women & L. 197, 21617 (2003).
226 See U.S. Dept of State, Trafcking in Persons Report, supra note 30, at 164
65, 20506.

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vance would be. These after-the-fact reforms can be seen as insufcient


or supercial when the state is simultaneously causing the harms through
its policies while trying to remedy them by providing only partial, temporary rights, and limited information to victims of trafcking. Acknowledging that legal regulation reshufes the power structure to the benet
of some and at the cost of others could possibly lead feminist policy makers
to formulate proposals that do not merely remedy harms ex-post, but rather
ex-ante limit (or avoid, if possible, altogether) some of the tradeoffs.
C. A Hybrid RegimeIsrael
Israel presents an interesting hybrid of regimes of sex work. On the
one hand, the Israeli legislature is committed to an abolitionist approach
that criminalizes procurers and trafckers and prohibits brothel operation
and ownership.227 On the other hand, prostitution is unofcially institu228
tionalized and regulated in Israel. As the discussion of the Swedish and
Dutch regimes illustrates, a gap may open up between the legislative intent and the legal reality, even in the purer regimes. Yet the case of Israel
provides an opportunity to study a context in which hybridization does
not merely occur by a disharmony between branches of the state, but rather
is heavily institutionalized, visible, intended, and pervasive. Although
prostitution in Israel is not fully decriminalized or legalized, it is widely
tolerated. This toleration is institutionally manifested in a variety of ways,
including an attorney generals directive asserting that police will not
investigate regular prostitution unless there is suspicion of aggravating
circumstances (such as trafcking);229 court decisions recognizing the pimp/
230
prostitute relationship as an employment relationship; National Insurance
Institute recognition of victims of trafcking as workers for the purpose of
231
receiving workers injury compensation; and the operation of a generally
un-intruded-upon yet unofcial red-light district. Each of these deviations from the penal codes abolitionist position can produce complex sets
of effects on sex markets. One cannot assume that this de facto decriminalization translates to straightforward normalization of the sex industry.
As my analysis aims to illustrate, depending on various factors, these insti227

Penal Code 199-203, 5737-1977, 864 S.H. 226 (1977).


Tehila Sagy, The Invisible Regulation of Prostitution in Israel, in Inquiries in Law,
Gender and Feminism (Dafna Barak Erez et al. eds.) (forthcoming 2006) (manuscript on
le with author).
229 Investigation and Prosecution Policy in Offences of Prostitution and Trafcking in
Persons for the Purpose of Prostitution, 2.2 Atty Gen. Directive, supra note 107.
230 NLC 56/180-3 Eli Ben-Ami Mechon Classa v. Rachel Glitzcensky, 31 PDA 389
(1998) [hereinafter Ben-Ami]. Employment protections are of universal application in Israel and can be extended to undocumented migrant workers.
231 In one case, a migrant sex worker who was injured when the brothel she worked in
was set on re was found to be eligible for workers accident compensation by the national
insurance institution. This case was presented by the workers lawyer, Ahuva Zaltsberg, at
the Oppression-Compensation Conference held at Tel-Aviv University in July 2004.
228

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tutional divergences can lead to intensication or relaxation of restrictions on the sex industry, and, consequently, to different costs and benets to
relevant stakeholders.232
From the point of view of GF, the Israeli regime embodies discursive
and material ambiguity. On the symbolic level the state acknowledges the
harms of prostitution and calls for its abolition. On the material level state
institutions attempt to ensure minimum employment law protections and
other welfare protections for workers of this illegal industry. Structuralists
see this situation as deeply hypocriticalthe state fails women by not
following its promise to protect them from the violence of prostitution
through abolition. Individualists see this regime as problematic since it marginalizes sex workers and prevents their full inclusion under social legislation.
In my research elsewhere, I articulate and assess the costs and benets of the Israeli regime with regard to four groups of stakeholdersmen,
women who do not engage in sex work, local sex workers, and migrant
sex workers. Here, to exemplify how such an analysis might be elaborated, I
will briey perform this thought experiment, only this time regarding the
interests of migrant sex workers alone. To do this, one rst must assume
that migrant sex work involves not only costs, but also, at times, benets
to the women involved. Beyond the well-documented and disturbing costs
induced by migrant and trafcked womens vulnerability upon migration
and the widespread occurrences of exploitation and violence in such cases,
some individualist researchers have suggested that migrant sex workers
can reap benets from this experience in terms of assets (social, cultural,
nancial) they acquire as migrants that enables them to affect change
through both personal and community empowerment.233 The question a
cost-benet analysis will present is therefore not only what role the regu232 One example of the potential such institutionalized toleration has for both harmful
and benecial consequences for sex workers can be found in the attorney generals directive. The fact police (and prosecutors) are directed not to investigate and prosecute sex
establishments in the absence of aggravating circumstances leads, in Israel, to a generally
non-interventionist status-quo under which the red-light areas thrive. This can be seen as a
benet to sex workers since the sex industry is above ground and thus safer. But it can also
be seen to produce costs, such as tolerated violence of clients toward sex workers, or instances when police use their discretionary power of investigation to extort pimps and sex
workers (either demanding bribes or sexual favors), thus making use of the bargaining chip
a de jure abolitionist regime endows them with. Particularly vulnerable to such extortions
are migrant sex workers and trafcked women and their employers (because of their illegal
status), as well as those who work on the streets (who are often drug addicts). Yet it should
be noted that in the Israeli case, since the whole system shifted in the direction of non-enforcementthat is, non-enforcement is generally not negotiated the level of the individual corrupt policeman, but is rather mandated by explicit prosecution policythis happens mainly in
the margins, and particularly when the police is in touch with vulnerable groups such as
street prostitutes and workers who are illegal residents. For discussion of such police corruption in relation to trafcked women, see Nomi Levenkron & Yosi Dahan, Trafcking
in Women in IsraelNGO Report 4042 (2003).
233 Agustin, supra note 100, at 111 (quoting Katherine Gibson et al., Beyond Heroes
and Victims, 3(3) Intl Feminist J. Pol. 36586 (2001)).

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lative regime plays in enabling or preventing the costs, but also what role
it plays in enabling or preventing migrant sex workers from obtaining
benets. I believe a cost-benet analysis is a particularly useful tool in such
a policy analysis because it allows recognition of the harms caused by various social practices and regulatory regimes while portraying women as
strategic agents rather than as helpless vicitims.234
When treating sex work migration as part of the wider phenomenon
of worker migration, and under the assumption that most trafcked
women in Israel knew that they were to work as sex workers (even if they
often were not aware of the exploitative working conditions),235 the Israeli
legal regime might seem relatively benecial for migrant sex workers, in
comparison to the purer feminist regimes explored above in the contexts
of Sweden and the Netherlands. While migrant sex workers are vulnerable
to deportation since they are illegal residents, due to weak enforcement,
the actual risk of deportation is relatively low. The women are not eligible
for health insurance since they are not residents, but they can receive social security benets in case of work-related injury since that entitlement
does not depend on a persons residential status. Migrant sex workers are
also theoretically protected by existing workers rights due to their universal
application.236
Since neither the penal code nor the courts view consent as a factor in
the anti-trafcking provision, a migrant sex worker is presumed to be a victim when picked up by police. This has the potential cost, mentioned above
by Halley, of precluding women from the process of dening their experiences, their harms (if there are any), and the causes of those harms.
But at the moment of confrontation with the Israeli authorities, this can
be a strategic benet. As a victim of trafcking, a woman is eligible for shelter, counseling, health insurance, and a small allowance, benets that other
undocumented workers, even those who have been severely exploited, do
not have. When women do not agree to testify, their situation more strongly
resembles that of other undocumented migrantsi.e., they will be promptly
deportedyet it is still somewhat improved due to the a priori assumption of victimhood, the relatively wide awareness of their possible exploitation, and an improved institutional reaction to their migratory situation.
However, migrant sex workers are still a highly disempowered group
in Israel. As illegal migrants, working in a stigmatized industry, they often have a low sense of entitlement and few resources to mobilize as a

234 The merits of such a methodological approach will be further developed in the next
Section.
235 Israeli NGOs estimate that 70% of women trafcked into Israel know they are being
recruited for sex work. Nomi Levenkron et al., supra note 102, at 6.
236 CA (BS) DM 1040/01 Eric Tomsanga v. Ambassador Hotel, [2001] IsrDC 46 (unpublished). See also workers rights pamphlet distributed by Kav Laoved, an Israeli NGO
that provides legal aid to migrant workers, available at http://www.kavlaoved.org.il/word/
zchuton060904.html (last visited Apr. 25, 2006).

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group. The situation of migrant sex workers is often transitory or perceived


as such by the workers themselves. Thus, they lack a group identity that
might enable organization.237 Further, any attempt to organize sex workers in
Israel will most likely exclude illegal migrants since their illegal status
hampers many governmental entitlements and weakens any claim for institutional recognition as anything other than victims. As the case of the
Netherlands proves, when the sex industry is regulated, the situation of
migrant workers generally worsens.
Both the structuralist/abolitionist and the individualist/regulative approaches fail to provide a solution to the vulnerable position of migrant sex
workers. Both are unsuccessful on this front since neither calling migrant
sex workers victims nor normalizing sex work can overcome migrant sex
workers basic illegal status.238 Given that a purely abolitionist regime, like
the Swedish one, drives sex work underground and renders sex workers,
particularly migrant sex workers, more vulnerable, and that the legalization regime tends to further exclude migrant sex workers, the Israeli regime seems to be an improvement upon both. Migrant sex workers are entitled to limited worker and social rights, workers chances of being immediately deported are relatively low, and there is an institutional mechanism to aid them in case of exploitation. Also, since the sex industry is
partially institutionalized, the industry is run above-ground and is therefore less dangerous. Although the wide zone of toleration is problematic
in that it tolerates high levels of abuse and exploitation, given that migrant
sex workers are a particularly vulnerable group, it seems that, in a migratory (non-trafcking) situation, it still might have relative benets in relation to the implemented paradigmatic feminist regimes in Sweden and
the Netherlands.
The Israeli regimealthough from a feminist point of view not necessarily well-motivatedappears to have a complex set of costs and benets that cannot be recognized using the relatively static and somewhat simplied prohibitionist (structuralist abolitionism) or permissive (individualist legalization) conception of law and its effects held by governance
feminists (GFeminists). As the analysis above suggests, relaxing the traditional feminist assumptions and focusing on the costs and benets of the
regimes to different groups of sex workers reveals the costs feminist legal
regimes cause to (migrant and local) women working in the illegal economy. Further, through closer attention to the harms caused by the exclusion
inherent to a state of illegality, such an analysis allows the exploration of
possible regulative alternatives that attempt to soften the selective protection offered by strict legal regimes.
The Israeli sex work regime is highly problematic in that it generates
uncertainty, tolerates violence, abuse, and exploitation of women and in237
238

See Agustin, supra note 100, at 110.


See id. at 112.

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duces stigmatization of sex work. Yet it also enables moments of humane


treatment of sex workers while not buying in to the liberal discourse of
free choice. This hybrid regime is at once both structuralist and individualist and is therefore neither. To be thoroughly understood it calls for the
use of a different set of analytical tools. It provokes a more intricate analysis
that examines the costs and benets to different groups from the law in
the books and from the law in action. This brief cost-benet analysis suggests that the Israeli hybrid regime, although constructed inadvertently
and with little feminist input, might be as benecial (or more benecial)
to many sex workers as the two pure feminist regimes are.
II. MethodologyDistributive (Cost-Benet) Analysis
In my research, I try to develop a cost-benet analysis of the legal regimes of sex work. I believe that this analytical tool has two main strengths:
it manages to avoid the problems raised by contradictory empirical data,
and it allows a more complex, multi-dimensional understanding of the motives and interests of various actors and a more accurate assessment of the
effects of legal reform. I will briey expand on both qualities.
A. The Empirical Problem
One problem often mentioned by policy makers in shaping legal regimes of sex work and sex trafcking is the lack of reliable empirical data.239
It is difcult to obtain accurate data about sex work and trafcking because of the underground nature, transitory patterns, and stigma that often
accompany it. Using empirical data, both structuralists and individualists
in the feminist debate over commercial sex claim to reect and channel
the authentic, sex worker/prostitute voice. Yet the facts the opposing positions rely on mirror two very different realities of prostitution/sex work. The
same problem appears in the area of sex trafcking, where consolidated
data is limited and often biased.240 The different realities reected by research are utilized to justify the different legal regimes developed and the
disregard for the costs they produce. The contradictory data leads to con241
stant calls for more and better research.
239 The problem of empirical data has distinct characteristics in the context of sex work
and sex trafcking but it is not unique to these contexts. Similar problems can be found in
other elds of legal policymaking. See, e.g., Martha Fineman & Anne Opie, Uses of Social
Science Data in Legal Policymaking: Custody Determinations at Divorce, 1987 Wis. L.
Rev. 107, 108 (1987).
240 Stat. Commn & UN Econ. Commn for Eur., Churning out Numbers
Trafcking and Statistics (U.N. Econ. Commn for Eur. Working Paper No. 16, Nov.
30, 2004), available at http://www.unece.org/stats/documents/2004/10/gender/wp.16.e.pdf.
241 For a call for more research in the sex work debate, see Wendy McElroy, Prostitution: Reconsidering Research, Spintech, Nov. 12, 1999, available at http://www.wendy
mcelroy.com/articles/spin1199.html (last visited Apr. 25, 2006); Sylvia Law, Commercial

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But it is not immediately clear that more or better information is actually attainable. The contradictory descriptions of the realities of sex
work and trafckingas inherently harmful and victimizing or as possibly empowering and liberatingare evidently not purely information
driven; rather they are inuenced by ideology and morality. In these debates it often seems that facts do not necessitate one position or another,
but are produced by these positions. If this is the case, the positional gap
will not likely be bridged by more information. The data collected and
interpreted is no more than a discursive tool in the debate and should accordingly be understood rst and foremost as political, ideological, symbolic, and strategic. All this is not to suggest that further research is not
needed or that current research is dispensable. Policy reforms should draw
on data about the practices of sex work and sex trafcking. Nonetheless
the biases inherent in the existing data should be taken into consideration. Thus, the debate must be informed by research, but is unlikely to be
resolved by it.
It is at this point that I nd the cost-benet analysis methodologically helpful. Cost-benet analysis manages to dodge the empirical trap
by providing an analysis that is based on speculative modeling. The distributive outcomes of the regime are mapped through the elaboration of
possible scenarios that derive from empirical data, but do not rely on data
alone. Such models take into account not only what really happens (as
it is described according to certain empirical research), but also what might
possibly happen: the realities that researchers, all or some, might be unable or unwilling to detect. Cost-benet modeling therefore presents a way
to stay close to what we (empirically) know, but allow for the possibility
that what might not be widely empirically proven (because of the impediments suggested above) could still inuence and enrich policy formation.
B. Assessing Legal ReformsBeyond the Prohibitive/ Permissive Vision
of Law of Governance Feminism
Using a cost-benet analysis can be problematic in this sensitive
context because it attempts to nd benets in situations that many see as
inherently harmful and costs in what is seen as possibly redemptive. Accordingly GFeminists can argue against this method, saying that even if,
for example, migrants sex work leads to some limited benets to the
women involved, these should be disregarded as illegitimate or negligible
or strategically harmful even to mention. I disagree. I believe that lookSex: Beyond Decriminalization, 73 S. Cal. L. Rev. 523, 534 (2000). In the sex trafcking
debate see International Organization for Migration, Counter-Trafcking in
Eastern Europe and Central Asia 7 (2003); Distortions and Difculties in Data For
Trafcking, 363 Lancet 556, 556 (2004); Therese Blanchet, Beyond Boundaries: A
Critical Look at Women Labour Migration and the Trafcking Within (2002),
available at http://www.walnet.org/csis/papers/BEYOND.DOC.

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ing at the distributive effects for a wider range of stakeholders and in a


wider scope of human contexts does not legitimate any benet produced
by womens work when it is exploitative. On the contrary, this approach
allows the wide range of incentives (including those of the women themselves) to come into view. Far from being harmful to feminist goals, it is
crucial to revitalizing (and to an extent disrupting) the current paths of
GF. As a methodology, such an analysis can supply a fresh new realist
and pragmatic vision of the regulation of sex work; it can induce GFeminists to break away from the limited view of law as capable of either prohibition or permission (a view dictated by the current commitments of many
GFeminists) and enable a complex, nuanced perception of choice,
agency, and consent.
The power of the cost-benet analysis comes from its refusal to reduce any of the actors involved to mere victims, or to imagine them as the
liberal paradigm of an actor surrounded by endless unconstrained choices. It
views social and economic interaction as a zone in which all actors have
some powersometimes limited by personal or structural constraints and
always limited by background rulessince each has a set of strategic moves
from which she can choose. Thus it allows us to relax the structuralist
assumption of an all-encompassing male domination in which women are
nothing more than passive victims, and at the same time avoids the romantic (in this context) individualist assumption of a freely choosing individual in a world of endless market possibilities.
An inuential GFeminist argument against cost-benet analysis lies
in the analysis association with Law and Economics and the goal of efciency.242 I nd this feminist rejection of cost-benet analysis unjustied.
First, as I have explained and illustrated above, by breaking the consent/
coercion dichotomy, the cost-benet methodology does important work
for policy makers before they reach the moment of decision concerning a
particular policy, and thus allows a richer view of the operation of power
in markets. Second, cost-benet analysis does not necessitate the turn to
an efciency criterion to determine the best policy. After mapping out the
affected interests, we do not have to opt for the most efcient solution, but
can decide to shape our policy according to a different standard, such as
a distributional consideration. For example, we are not barred from choosing
a solution that is best for the party who bears the most cost under the current legal regime. Admittedly, now when we choose a protective criterion,
we will be compelled to realize that such a protectionist view might not
itself be harmless to other actors or even to the protected woman herself.
A cost-benet analysis inevitably creates awareness of both negative and
positive effects of regulation for a wide set of interests. Finally, the legal
feminist rejection of law and economics in general, and efciency analysis in particularseeing it as contradictory in its methodology to core prem242

Robin West, Caring for Justice 16973 (1997).

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ises of feminismcan itself be challenged, although elaborating this critique is beyond the scope of this piece.243
A new set of revealing questions emerges when we assume that the
legal system distributes and redistributes bargaining chips among actors.
In such an analysis we might ask: under a certain regime what tactics do
local sex workers have vis--vis exploitative johns and customers? And
what possibilities do migrant sex workers have against the same exploitation? How does the regime affect the operation of the sex industry and
how does that in turn affect the working conditions of the women involved? What moves do migrant workers exploited in other unskilled
gendered sectors, such as domestic work, have against their employers, and
how do these workers fare in relation to exploited local domestic workers, migrant sex workers, and trafcked women? How does the existence
of an accessible (or alternatively underground) sex industry affect women
who are not sex workers? And how does it affect men? Such questions,
partly de-legitimated by the current mode of GF, are an essential part of a
distributive analysis. These questions create room to examine the conict
of interests between men and women and between different groups of
women, conicts that greatly affect the operation of legal regimes, and yet
244
are often overlooked or denied by the language of horror so frequently
used in discussing commercial sex, migrant sex work, and trafcking.
As the set of questions above illustrates, through a distributive analysis
one can see the strategic moves available to women within the system
and assess how various women fare under different legal regimes. Acknowledging that power (albeit in different degrees) resides in all actors
and that potential strategies of resistance are always already available,
the researcher can evaluate how a regulative regime limits, eliminates, or
perpetuates acts of resistance and compliance. This distributive analytical
lenslooking at winners and losers, costs and benets of various stakeholdersallows not only a more realist description of the operation of actors in markets and in the shadow of legal regimes, but also enables what
might be a more deeply transformative view of the operation of gender as
a system of power. These richer assessments of womens experiences will
then, hopefully, be able to nd their expression in novel forms of feminist legal regimes that will be focused on distribution, aware of their con243 For a critical engagement with feminist suspicion of law and economics and the
concept of efciency, see Janet Halley, The Politics of Injury, 1 Unbound 65 (2005),
available at http://www.law.harvard.edu/students/orgs/unbound/articles/1UNB065-Halley.pdf
(reviewing Robin West, Caring for Justice (1997)); Philomila Tsoukala, Gary Becker,
Legal Feminism and the Costs of Moralizing Care (unpublished working paper) (copy on
le with author) (mapping the feminist debate over the issue of womens unpaid work as
homemakers, with a focus on the relationship of legal feminists to economic thought, and
critiquing the feminist rejection of the standard of rationality and the use of the language
of costs and benets, in an attempt to rehabilitate the idea of economic methodology as a
legitimate and necessary feminist endeavor for feminist projects within the legal eld).
244 Kennedy, supra note 4, 12930.

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sequences, and responsive to the intricate operation of power of all actors, so


as to improve the well-being of women inside and outside markets of commercial sex.
Prabha Kotiswaran
Thomas and Shamir have already demonstrated in the context of international law and national legal regimes the radically different appetites
that the two major feminist camps, namely, the structuralists and individualists, have for the criminalization of sex work and trafcking. Furthermore,
these preferences for regulation can be traced back to fractious feminist
normative debates around sex work and trafcking.245
Structuralist feminists are against the commodication of sex; they
view sex work as coercion, violence, and bad sex and view sex workers as
victims who lack agency and are slaves to institutionalized violence. Individualist feminists, on the other hand, are agnostic to the commodication
of sex; they understand sex work in terms of choice and work and view
sex workers as agents who can negotiate within institutions as individuals. While the discussion of feminist legal projects of regulation is more
amenable to such polarized presentations, feminist theorizing is far more
nuanced and sophisticated than these ideal typical formulations of the
feminist position on sex work and trafcking suggest. Feminists are always mindful of the fractious nature of the feminist debates on sex work
and negotiate their ways around or over them even if this means simply acknowledging the need for breaking out of the impasse in light of the limitations of both approaches. Others are motivated by an impulse to hybridize these opposing feminist camps, and yet others explicitly take on the
project of making peace between them. Similarly, even structuralist feminists will acknowledge that sex workers have some agency, some of the
time, and that the commodication of sex may be permissible on pragmatic grounds.246 So also, individualist feminists will recognize that sex
workers choose to do sex work out of a highly restricted set of livelihood
options and experience violence in sex work.
Unable to resolve the originating dilemma over the terms of this debateis sex work a form of work or violence, is it chosen or coerced, are
sex workers agents or victimsmost feminists belie an uneasy truce between the ideal types of the structuralist analysis offered by radical feminists on the one hand, and the individualist analysis offered by sex radicals and sex workers on the other. In other words, in between these two apparently extreme feminist camps lies a continuum of feminist positions of

245 See Christine Overall, Whats Wrong with Prostitution? Evaluating Sex Work, 17 Signs
705, 707 (1992) (explaining the divide between individualist feminists and structuralist
feminists on the issues of sex work and trafcking).
246 See generally Margaret Jane Radin, Contested Commodities (1996).

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a structuralist or individualist persuasion. I call these feminists middleground feminists, not only because they occupy the space of the continuum, but also because they often explicitly or implicitly are invested in the
project of making peace247 between the feminists who occupy the two extreme ends of the continuum; this is typically reected in the feminist impulse to hybridize and could play out along several axes of analysis, including the empirical, regulatory, and normative, as well as in terms of scale. For
example, Sunder Rajan explains the intense disagreement amongst feminists on sex work as lying in the fact that it is as description that the
discourse of prostitution often functions248 fueled by different disciplinary frames and methodological imperatives that structure feminist meaning-making around sex work. She however also argues that, in addition to
conicting empirical accounts of sex work, feminists also differ in their
political positions toward sex work; abolitionists read prostitution as structure or system, decriminalization advocates as practice (sex work).249 Reconciliation between these two positions she notes is becoming increasingly
popular amongst feminists who embrace the contradiction of abolishing
the system while empowering the practice, indeed to achieve the rst by
means of the latter.250 As for a project of law reform, the goal will be to
achieve a national law that either decriminalizes sex workers or consciously
legalizes toward empowerment while opposing the institution of prostitution at the international level.251 Middle-ground feminism in this sense
involves a mode of argumentation which mediates the existing oppositions between structuralist feminists and individualist feminists in the
following way: it supports the rights of sex workers but not the right to
sex work;252 it supports empowering practices of individual sex workers
247 Ann Lucas calls on feminists to acknowledge the facts of prostitution, namely
that prostitution could be a site of resistance but is no guarantor of it; in her words, recognizing this fact of prostitution might also help activists and scholars bridge the gulf
that now divides them into pro-prostitution and anti-prostitution camps. Ann M. Lucas,
The Dis(-)ease of Being a Woman: Rethinking Prostitution and Subordination 432 (1998)
(unpublished Ph.D. dissertation, University of California, Berkeley) (on le with author).
See also Rajeswari Sunder Rajan, The Scandal of the State: Women, Law and
Citizenship in Postcolonial India 117, 142 (2003); Marjolein van der Veen, Rethinking
Commodication and Prostitution: An Effort at Peacemaking in the Battles over Prostitution, 13 Rethinking Marxism 30 (2001).
248 Sunder Rajan, supra note 247, at 142 (emphasis in original).
249 Id. at 144.
250 Id. at 146.
251 Id. at 146.
252 Overall, supra note 245, at 72324 (responding to sex worker activists claims that
women should have the right to do sex work: it should at least be said that the claim of a
right to be a prostitute can be turned against women by those who merely want to preserve
mens entitlement to buy womens bodies.). Another feminist notes her dilemma when she
draws the following distinction: Another important issue is whether or not we make a
distinction between the rights of women in prostitution and the right to prostitution and
how this translates ideologically and practically. Jean DCunha, Prostitution: The Contemporary Feminist Discourse, in Embodiment: Essays on Gender and Identity 230,
252 (Meenakshi Thapan ed., 1997).

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within the sex industry but is against the institution of prostitution itself;253 and it acknowledges the agency of sex workers but interrogates
why sex work should be viewed as work.254
These mediations by middle-ground feminists signify a politics of
deferral. Typically, it is in the realm of policy that one can witness this most
spectacularly, for middle-ground feminists will often support decriminalization as the most appropriate solution in the short term.255 After all, all
feminists are in agreement that sex workers should not be penalized for
doing sex work.
I. From Injury to Redistribution: The Blind Spots of
Governance Feminism
Middle-ground feminism warrants closer attention for two reasons.
First, middle-ground feminisms peace-making tends to result in regulatory reform projects like partial decriminalization which are both politically non-controversial and expedient for national governments under increasing U.S. pressure to assess their prostitution law regimes. This is already borne out in the Indian example and the popularity of the Swedish
regulatory model conrms this trend. This suggests then that middle-ground
feminism has a better chance of being propelled into governance mode.256
Second, although middle-ground feminism is more a feminist mode of
thinking about sex work than a particular school of feminist theory, its limited vocabulary is almost entirely inuenced by the terms of the debate
253 Overall, supra note 245, at 723 (It therefore makes sense to defend prostitutes entitlement to do their work but not to defend prostitution itself as a practice under patriarchy.) This is a concern of feminists the world over; see Barbara Sullivan, The Politics of Sex: Prostitution and Pornography in Australia Since 1945, at 165 (1997).
See also Sunder Rajan, supra note 247, at 146 (endorsing Lynn Sharon Chancers argument that feminists should support prostitutes while opposing prostitution).
254 Sunder Rajan, supra note 247, at 13840.
255 Lucas argues that once we have made peace between the anti and pro-prostitution
camps, we can build broader support for decriminalization, which she then demonstrates
will help both sex workers and non-sex workers. Lucas, supra note 247, at 43335. Accord
Debra Satz, Markets in Womens Sexual Labor, 106 Ethics 63, 64 (1995). But see Laurie
Shrage, Should Feminists Oppose Prostitution, 99 Ethics 347, 361 (1989) (supporting
decriminalization but arguing that feminists have legitimate reasons to oppose prostitution
politically); Overall, supra note 245, at 708, 722 (supporting sex workers rights but arguing that prostitution is bad because it is an unequal practice taking place against the background of capitalist patriarchy); Chancer, Prostitution, Feminist Theory, and Ambivalence:
Notes from the Sociological Underground, 37 Soc. Text 143, 166 (1993), quoted in Sunder Rajan, supra note 247, at 146. Indian feminists also voice this view; There is the need
to concretely and actively address in practice the concerns of individual women in prostitution, especially those who continue to operate within the sex service sector, without legitimizing the institution of prostitution and third-party managements. DCunha, supra note
252, at 252.
256 Ratna Kapur, Erotic Justice Law and the New Politics of Postcolonialism
74 (2005) (Overall, the recommendations of the NCW sought to address the real concerns
of sex workers, without condoning sex-work itself. It was for the rights of sex-workers,
without being in favor of sex-work.).

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set by radical feminism. This is evident in the fact that when confronted
by sex workers demands for workers rights, middle-ground feminists are
persistently able to respond only in the language of harm and injury and
reject proposals for workers rights for sex workers because sex work causes
harm with a capital H257 to both sex workers and non-sex workers. This
is despite the fact that these harms (even with a capital H) are not unique
to sex work, so while they cannot be ignored, invoking them does not
constitute a compelling argument for not conceptualizing sex work as a
form of labor or legitimate work or for abolishing sex work. Similarly, middle-ground feminism calls upon sex workers who demand workers rights
to explain to feminism the nature of the labor involved in sex work and
why it should be recognized as such despite the fact that, all around us,
we nd markets for sex work. My own analysis is that this is because
middle-ground feminism does not have a normative theory of sex and is
unwilling to address explicitly the question of whether women can or should
sell sex for money.
Another example of how radical feminism animates middle-ground
feminism is the latters focus on the question of sex worker agency in reaction to the radical feminist denial of sex worker agency.258 This is perplexing because agency is a poor analytical tool (not unlike choice in
an earlier era of feminist theorizing on sex work) with which to understand the status of sex workers given the multi-dimensional and multi-directional ows of power within any given sex industry, thus severely detracting from examining questions of distribution. My point of departure from
middle-ground feminism in its governance mode makes the move from a
politics of harm and injury to one of redistribution by pursuing questions
of internal and external redistribution; by external redistribution, I mean
the need to explore the relationship between sex workers and workers outside the sex industry, such as wives. In other words, how does making rule
257 This harm with a capital H can be further broken down into four harms; the rst
most obvious harm being the physical, emotional, and mental harm and exploitation resulting directly from sex work itself; the second harm being the harm arising from the objectication and commodication of women in sex work, see generally Margaret Jane
Radin, supra note 246; the third harm being its gendered reality and its consequent feminization; and the fourth harm being the harm done to all women because sex work reinforces
stereotypes of female availability, exacerbates gender inequality and is a form of sex discrimination. Satz, supra note 255. See also Shrage, supra note 255, at 347, 349, 352;
Overall, supra note 245, at 721; Linda R. Hirshman & Jane E. Larson, Hard Bargains:
The Politics of Sex 291 (1998). All four harms are elaborated in a number of radical
feminist texts. See Kate Millett, The Prostitution Papers (1971); Kathleen Barry,
Female Sexual Slavery (1979); Kathleen Barry, The Prostitution of Sexuality
(1995); Sheila Jeffreys, The Idea of Prostitution (1997). But see Martha Nussbaum, Sex and Social Justice 28897 (1999) (offering a detailed response to these harmbased arguments).
258 There are exceptions however. Sunder Rajan for instance calls upon middle-ground
feminists of an individualist persuasion to give pause to their valorization of sex worker
agency and to identify the precise agential role of sex workers in their demands for workers rights. Sunder Rajan, supra note 247, at 140.

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changes for sex workers affect wives and vice versa? For this, I ask how
feminists most engaged with questions of redistribution, namely, socialist
feminists, theorized sex work. By exploring debates internal to a school
of feminism, which is explicitly not in a governance mode, and does not
treat sex work as exceptional, but as deeply related to marriage, I suggest
that it is possible to address questions of redistribution that are external
to the sex industry. For internal redistribution, I propose exploring the
prospects for redistribution amongst sex workers who work in highly differentiated sex markets, regulated by criminal law. For this, I draw on the
insights of legal realism and the considerable scholarship on illegal economies, legal pluralism, and private ordering in the shadow of the law.
Socialist feminist analyses of sex work have been overshadowed and
even mischaracterized as supporting sex work as a form of legitimate
work259 in the feminist debates on sex work. On the contrary, even in the
labor republic sex work was viewed as the very antithesis of work.260 Despite the abolitionist politics which socialist feminism shares with radical
feminism, their modes of argumentation could not set them further apart.
The most signicant difference in this respect is the socialist feminist
understandings of the relationship between sex work and marriage. While
classic socialist feminist texts provocatively asked if there was any difference between sex work and bourgeois marriage, later socialist feminist
analyses of sex work have argued that sex work and marriage form two
ends of the continuum along which women exchange sex for consideration. In other words, patriarchy is a unitary system that collectively appropriates the labor of women in both marriage (sexual and social labor)
and sex work (sexual labor) and maximizes this appropriation by reinforcing the divide between marriage and sex work, both materially and
ideologically. This approach furthers a redistributive feminist understanding of sex work, as it holds both sex work and marriage in continuous conversation with each other by highlighting their differential institutional
coordinates for providing sexual labor without collapsing them into each
other or articulating a hidden preference for one over the other. In contrast, GF informed by the radical feminist analytic of sex work privileges
marital sex over non-marital sex by calling for the criminalization of sex
work, even if directed at the customer, and by viewing sex work as nothing but sexual violence, while ignoring the exploitation inherent in marriage unless it assumes the form of domestic violence.
However, the radical potential of socialist feminist insights on sex work
is severely handicapped because socialist feminism shares with radical
feminism the latters top-down totalitarian theory of power that has little

259 Margaret Baldwin, Split at the Root: Prostitution and Feminist Discourses of Law
Reform, 5 Yale J.L. & Feminism 47, 102 (1992).
260 See generally Alexandra Kollontai, Sexual Relations and the Class Struggle, in
Selected Writings of Alexandra Kollontai 237 (Alix Holt trans., 1977).

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room for resistance, pleasure, or the possibility of bargains between sex


workers and other players in the sex industry. To that extent, it is perfectly possible, even after effecting the discursive shift within feminist
theory from a radical feminist analytic of sex work as sexual violence to
the socialist feminist analytic of sex work as labor, that feminists will engage in a politics of deferral by reproducing sets of oppositional categories along the primary dichotomy of desirable labor versus undesirable
labor.261 Still, socialist feminism may provide critical insights in enabling
a turn to redistribution at this juncture of feminist theorizing on sex work.
II. From Injury to Redistribution: Legal Realism in the Study of
Sex Industries
The second ground on which to move to redistribution is external to
feminist theory. Here, we can use legal realism to develop an understanding of the role of the law in the sex industry. Halley, Thomas, and Shamir
have demonstrated the several unintended consequences and blind spots
of the prohibitionist agenda of GF in regulating rape, sex trafcking, and
sex work, producing in the process methodological tools that might make
such analysis possible. While substantially reiterating the insights they
provide, I add to this methodological repertoire my empirical analysis of
the role of the criminal law in two local Indian sex industries, namely,
that of the biggest and oldest red-light area of Kolkata, Sonagachi and the
South Indian temple town of Tirupati. In particular, I focus on the completely counter-intuitive implications of criminal law highlighted by Halley, albeit in the adjudication context. While I am interested in the quantitative questions of over- and under-enforcement of criminal laws and
the blind spots and tolerated residuum of abuse they foster, the microlevel workings of criminal law warrant closer attention. Here, I argue that
middle-ground feminists are cognizant of the problems attending a prohibitionist legal project, especially the deep connection between criminal
law and social marginality that leads them to advocate partial or complete
decriminalization. At the same time through a legal realist analysis of the
criminal law in local sex industries, I argue that even feminists who call
for partial or complete decriminalization have a simplistic understanding
that the repeal of certain parts or all provisions of the antisex work criminal
law regime will somehow ameliorate the conditions of sex workers.
In particular, governance feminists (GFeminists) in India have produced an understanding of the role of the antisex work law in the sex industry which I call the structural bias thesis. There is every indication

261 This is already evident in the work of some feminists; see Jane Larson & Berta
Esperanza Hernandez-Truyol, Both Work and Violence Prostitution and Human Rights, in
Moral Imperialism: A Critical Anthology 18586 (Berta Esperanza Hernandez-Truyol
ed., 2002). See also Hirshman & Larson, supra note 257, at 289.

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that the state is in agreement with the structural bias thesis.262 The structural bias thesis presents the story of the cumulative effect of myriad biases leading to the selective and discriminatory enforcement of the antisex
work laws always to the detriment of sex workers interests. In particular,
both the antisex work law and the criminal justice system suffer from biases that systematically and routinely converge: a substantive bias in the law
that explicitly scapegoats the victims of commercial sexual exploitation,
namely, sex workers, but does not criminalize customers; a bad faith bias
of collusion between the law enforcement machinery and the owners and
operators of sex businesses leading to chronic under-enforcement of the law;
a procedural bias built into the criminal justice system; and an operational gender bias evident in the day-to-day implementation of the law.
Even when the benevolent provisions of the law relating to rehabilitation
are invoked, it leads to perverse results for sex workers. In light of this
analysis, middle-ground feminists of a structuralist persuasion will call
for partial decriminalization, that is, to redirect the force of the criminal law
against stakeholders in the sex industry other than sex workers. Middleground feminists of a more individualist persuasion will call for complete
decriminalization, that is, decriminalization of all stakeholders in the sex
industry. I will begin by problematizing the proposal for partial decriminalization in light of the structural bias thesis and go on to problematize the
proposal for complete decriminalization in light of the blind spots of the
structural bias thesis.
There is much to be said for the accuracy of the structural bias thesis. Its validity is borne out in several different contexts. I will highlight
only three of them; the rst relating to the trial process under the ITPA,
the second to the use of the ITPA in a non-sex work context, and the third
in a non-law enforcement context. In the rst instance, the procedural
bias of the criminal justice is patently directed against sex workers. For
example, the organization that I worked with in Tirupati called WINS applied for bail in the district court for two street-based sex workers arrested under the ITPA; there we found a stunning range of actors and dispositions stacked against sex workers. For example, the court was a highly
gendered space where we, as a group of women, quickly became a spectacle. A criminal defense lawyer obtained the signatures of the sex workers on blank paper when they were produced in court. There was legal ambiguity, even in what might be considered straightforward procedural law,
about whether an NGO could post cash surety instead of having to nd a
personal surety; there was in any case a thriving market in local personal
sureties. Finally, a high-caste criminal defense lawyer who offered to take
on the case pro bono taunted the NGOs sex worker peer educators for
262 Plan of Action, supra note 136, at 44 (stating that the present legal framework to
combat commercial sexual exploitation results in re-victimisation of the victims of exploitation while the exploiters go scot free.).

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wasting the energies of us middle-class women by doing sex work instead


of nding an honest livelihood. The typical length of the trial, which in this
case extended to fourteen months, did not help sex workers either.
In the second instance, we nd that in routine interactions between
sex workers and the law enforcement machinery, the ITPA is a powerful
tool in the hands of the police for use against sex workers. For example,
in one incident in Chittoor, a town near Tirupati, a group of sex workers, one
of whom had been kidnapped and raped by a customer, went to the police
station. The police refused to register a complaint only of kidnapping and
insisted on an additional charge of rape although the sex workers were ambivalent of a successful conviction because the raped sex worker had done
sex work with a customer after the rape. The police then offered to help the
sex workers frame the rape charge on the condition that the raped sex
worker give up sex work. When the sex workers refused, the police nally
threatened them with arrest under the ITPA, which essentially meant detention in police custody overnight and the looming prospect of physical
and sexual abuse. Hence not only is the ITPA used to target sex workers
more when compared to other stakeholders, the ITPA is also used by the
police against sex workers when they try to access the criminal justice system to counter abuse from other stakeholders in the sex industry, in this
instance, a violent customer.
Finally, even when the ITPA is not directly invoked, stakeholders in
the sex industry routinely fashion their living and working arrangements
in its shadow. For example, due to the criminalization of tenancy arrangements under the ITPA, sex workers in Sonagachi cannot contest an arbitrary raise in rents or eviction; for the same reason, a landlord will refuse
to install an electricity meter in a sex workers room. Again, a sex worker
cannot enforce the terms of her contract with a brothel-keeper or a customer
because the agreements between them are illegal under the Indian Contract Act, 1872, for being against public policy as embodied in the ITPA.
In light of these insights of the structural bias thesis, it is perplexing
that some middle-ground feminists would advocate for partial decriminalization of sex workers but not of other stakeholders in the sex industry, although sex workers are likely to bear the costs of any increased criminalization of landlords, customers, or brothel-keepers. Other middle-ground
feminists as proponents of the structural bias thesis argue that the repeal
of the antisex work criminal law, that is, complete decriminalization will
mean that sex workers are held less hostage to other stakeholders in the sex
industry. This certainly could be one result of complete decriminalization.
However, three conceptual drawbacks of the structural bias thesis undercut
at the simplicity of this proposition regarding the role of the criminal law
and therefore its repeal in the real world. These relate rst, to the complex rule networks within which the ITPA operates, second, to the radically internally differentiated nature of sex industries, and third, to the
uidity of sex industries. To begin with, in both sex industries that I stud-

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ied, the predominant legal regime was one of de facto decriminalization,


a utopia that many Indian GFeminists clamor for, but which, nevertheless, receives no mention in the discussions around law reform. Further,
de facto decriminalization could arise from the routine processing263 of
minor offenses under the general criminal law (such as the anti-obscenity
provision of the Indian Penal Code, 1860) or from the fact that sex worker
organizations can negotiate with the local police not to enforce antisex
work laws against lower-class sex workers resident in the red-light area.264
Agreements of the latter variety can actually satisfy the elaborate calculus of a corrupt police chief seeking to maximize his prot through selective enforcement of the antisex work law against the most protable of
sex businesses. Each genre of de facto decriminalization in turn determines
the bargaining power of sex workers within sex industries.
Against this backdrop of de facto decriminalization then, if we were
to heed the legal realist exhortation to focus on background rules, namely,
rules that structure the alternatives to being in the bargaining situation
rather than simply the rules at hand, namely, the ITPA,265 we nd that the
ITPA is suspended within a network of formal legal rules and informal
social norms ranging from tenancy practices in the red-light area to enforcement practices of the police, norms and practices within the sex business, changes to such norms and practices resulting from sex worker mobilization, and illegal market structures that arise from the pervasive criminalization of living and working arrangements by postcolonial laws, all
of which vary according to the sex industry under consideration. The result,
therefore, is that the rule network has already created an extensive realm
of private ordering, which in addition to the ITPA, affect the bargaining
power of sex workers vis--vis the state and other stakeholders in the sex
industry, such that even if sex work were to be completely decriminalized
or even legalized, to the extent that these components of the rule network
are left untouched, it may not translate into better bargaining power for sex
workers.
The structural bias thesis also does not account for the highly internally differentiated nature of the sex industry. From my empirical study
of the two sex industries of Sonagachi and Tirupati, it is clear that there

263 I borrow this term from Marc Galanters classic article, Why the Haves Come out
Ahead: Speculations on the Limits of Legal Change, 9 L. & Socy Rev. 95160 (1974).
Galanter suggests that these cases take the form of stereotyped mass processing with little
of the individuated attention of full-dress adjudication. Id. at 109.
264 For instance in Sonagachi, due to the mobilization of sex workers by the Durbar
Mahila Samanwaya Committee, a sex worker organization, the local police raid brothels under
the ITPA only under three circumstances, when a minor has been trafcked, when the police suspect the presence of men accused of serious crimes in the red-light area and when
non-residential street-based sex workers visiting the red-light area along with their customers, commit what in their view constitutes public nuisance.
265 Duncan Kennedy, The Stakes of Law, or Hale and Foucault, in Sexy Dressing
Etc.: Essays on the Power and Politics of Cultural Identity 83, 87 (1993).

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are several modes and sub-modes of organization of sex work where sex
workers exert vastly varied control over their conditions of sex work; that
sex work takes place in varied institutional settings and within sex businesses of different scales and where they engage with different sets of stakeholders. Based on this a highly fragmented view of the actors in any given
sex industry, I argue that their interests do not always overlap. My method
opens up the possibility that any nexus between the landlord, brothelkeeper, and pimp might be turned to the sex-workers advantage on some
dimension of social value; that the system is not necessarily and always
directed against the interests of sex workers. Consequently, we nd varying bargaining powers of the stakeholders and a differential impact of the
rule network on these stakeholders. Once we approach the various stakeholders in sex industries as highly fragmented and differentiated, and
block the a priori assumption that law enforcement always reduces harm,
we can assess the sometimes counter-intuitive and, in some cases, even
counter-productive results of apparently progressive legal solutions. For example, complete decriminalization might make sex work far more lucrative for sex workers. It would result in an inux of sex workers into the
sex industry where, except for the highest category of sex workers working
in large brothels, all other sex workers compete with each other, depressing wages and inciting a race to the bottom, which in turn undermines their
bargaining power with non-sex worker stakeholders in the sex industry.
Finally, the structural bias thesis fails to recognize the uidity of
norms and practices within the sex industry induced both by economic
changes in the sex industry, the impact of sex worker organization, and the
changing relations between the various stakeholders in the sex industry
both inter se and between them and sex workers. As long as GFeminists
view brothel-based sex workers as victims who experience brief and unsustainable ashes of agency in negotiating their work and personal lives,
an understanding of the dynamics of living cheek-by-jowl with several
other sex workers in a red-light area and the possibilities this offers for
collective action will be lost to GF. Even in sex industries like Tirupati
that are spatially and institutionally dispersed and where the collective
power of sex workers is minimal, negotiations between sex workers and
powerful stakeholders like the police, even if sporadic and eeting in
signicance, can take place. GFeminists need to be more attuned to these
dramatic, if short-lived, changes in the power structure.
In conclusion, I suggest that focusing on a politics of redistribution
rather than of harm and injury furthers a legal project of redistribution
for sex workers in three ways. First, radically expanding the legal playing
eld of the criminal law in sex industries allows us to understand the
prolic nature of the criminal law and identies the sets of legal rules, social
norms, and market structures with which it interacts to achieve its several
effects, anticipated as well as unanticipated. Second, having a more adequate understanding of the differential relation that sex workers in differ-

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ent modes and sub-modes of organization of sex work and institutional settings bear to the rule network leads us to acknowledge that the effects of
the rule network cannot be determined a priori and that in fact, in certain
circumstances the rule network may divide sex workers in ways we cannot foresee. Finally, it will allow us to account for uidity within the sex
industry by acknowledging how stakeholders are constantly reorienting their
bargaining positions vis--vis each other in light of internal and external
change. This will at the very least alert us to the limitations of decriminalization while hugely expanding our repertoire for more nuanced law
reform projects.
Conclusion
Generally, these are, we think, the most interesting points of consensus among us:
First, we think the international legal order is increasingly receiving
feminists into its power elites and that feminist law reform is emerging
there as a formidable new source of legal ideas. However questionable that
assertion might be elsewhere, we think it has real bite in recent changes
in positive international law governing sexual violence and commercial sex.
In the domain of sex trafcking, moreover, these reforms at the international level are having profound consequences in some national and local
contexts; sometimes some kinds of legal power shifts to some local feminists, and sometimes local feminists are signicantly sidelined by the reform. We are all nding it helpful to think of this engagement of feminism with legal regime as Governance Feminism (GF).266
To be sure, governance feminists (GFeminists) do not experience
themselves as wielding consolidated top-down power. This is probably right:
the kinds of power they have are the more fragmented, mobile, contingent,
and regulatory ones we associate with governance rather than domination. When domination is the name of the game, feminists have sought to
have it through the state. Indeed, we nd in international GF relating to
rape and prostitution a heavy bias in favor of fragmented modes of participating in power, coinciding with an equally heavy preference for outcomes
that ban, criminalize, or prohibit the conduct of men in order to protect
women who would be their victims.
Still, GFeminists frequently complain that they have no power at all.
We think this is a profound error, one whichif GF continues to grow
will lead GFeminists not only to wield power in bad faith, but to make profound miscalculations about what to seek by way of law reform. The denial will mask the many moments in which some feminisms win over other
feminisms as they jostle for legal and political priority. And the compari266 For an initial exploration of this chapter in the history of feminism, see supra text
accompanying note 143.

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son offered here between the effects of the U.N. Protocol and the VTVPA
in Israel and India suggests that local differences profoundly condition
the actual distributive effects of international GF achievements. Specically,
we nd that American and European feminists, making seemingly symbolic victories in the U.S. Congress, the United Nations, the ICTY, or the
Rome Statute negotiations, can put in motion chains of legal causation
thatby the time they reach Tel Aviv, Kolkata, or Chicagocan be exceedingly acute, and not always feminist in any intelligible sense. Finally,
GF operating in the international sphere sometimes explicitly strategizes to
bring international achievements back home to domestic law, often in
the GFeminists own hometown. Whether they will produce equally dramatic effects there remains to be seen. In short, GF has distributive consequences. Denying that GF exists is one way for GFeminists to avoid
thinking distributively about its own effects in the world.
Finally, we share the sense that GF operating in these reform projects has foreshortened the relationship between social theory and legal
advocacy. We share a sense of puzzlement about the attitude toward law
adopted in the parts of GF that have participated most signicantly in
international reform targeting rape in war and prostitution in international
labor migration. Often these projects sound like fairly simple socialcontrol projects. Method: dene a wrong happening to women; then either
criminalize it with the goal of eliminating it, or decriminalize womens
participation in the underlying exchange with the goal of liberating them
in it. The highly contingent and complex relationship between law in the
books and law in actionand the multitudinous ways in which the legal
system can be designed to shape but cannot control this relationship
seem to fall outside the scope of feminist concern.
Feminist advocacy that imagines prohibition to involve stopping
or ending sexual violence and/or commercial exploitation of sex workers brackets all the social contingency our legal realist and critical analysis would bring into focus. For example, the possible bad and unintended
consequences of the resulting rules seem to fall outside the scope of feminist
concern. As Thomas and Halley conclude, not much attention gets paid to
the possibility that intensication of the humanitarian punishment of wartime rape might (as well as deterring some rapes) increase the value of
rape as a weapon of war (thus also producing some rapes) or that the prohibition of prostitution and sex trafcking will produce black markets that
are not wild but rather highly regulated social spaces.
In two quite different ways GF has turned down its hearing aid to issues of national location. Thomas and Halley both note that GF reforms
sometimes end up ratifying national(ist) arrangements without paying much
attention to the possible downsides of doing so: feminist indifference to
the repatriation of trafcked women to their proper location on the globe
and the collaboration of feminists with ever-intensifying border-control
politics is not a pretty sight; nor is feminist indifference to possible eth-

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nic-nationalist deployments of their rules on rape. On the other hand,


Shamir and Kotiswaran note the inadequacy of most feminist models for
understanding complex national and local legal regimes affected by GF
achievements at the international level. They break out the multiple and
complex distributional consequences of prohibition and permission for
men and women differently situated and motivated: any given legal order
has multiple outcomes, not just one; and this is observable, they say, inside
actual national and local markets. Inasmuch as some of the people whose
lives stand to bear these background effects will be women, the novelty
of these observations inside (published) GF puzzles all of us.
Our sense at the moment is that a preoccupation with normative
achievements (message sending, making rape/sexual violence visible,
changing hearts and minds among elites and across populations) and a
legal imaginaire in which prohibition would stop or end conduct harmful to womenor decriminalize it in order to liberate them and give scope
to their agencyanimates the GF projects we are studying and detaches
them from a certain pragmatic attitude and interest in complex distributional consequences that we seek to bring to the domain. We are all agreed
that were working, methodologically, for a new legal realism that would
anticipate the complex ways in which legal entities meet complex societies.
For feminism in particular, our conversation suggests four new questions:
First, what parts of feminism have engaged in what parts of GF? For
instance, if feminism has become a kind of expertise, a form of neutral
objective knowledge that qualies one for neutral objective roles like administering and judging, what is it that these experts know? Here is one
part of what they know:
Rape and other forms of sexual assault harm not only the body
of the victim. The more signicant harm is the feeling of total loss
of control over the most personal and intimate decisions and
bodily functions. This loss of control infringes on the victims human dignity and is what makes rape and sexual assault such an
effective means of ethnic cleansing.267
This formulation of rape has been, however, intensely controversial inside U.S. feminism. Many feminists have argued against this representation of raped women as utterly without control.268 Its installation in GF
thus represents not only a triumph of feminism simpliciter, but a triumph
267 Commission of Experts Report, Annexes IX to XII, 25, U.N. Doc. S/1994/674/Add.2
(Vol V) (Dec. 28, 1994) (quoting elebii Trial Chamber Judgment, Case No. IT-96-21-T
492).
268 Haag, Putting Your Body on the Line, supra note 158; Sharon Marcus, Fighting
Bodies, Fighting Words: A Theory and Politics of Rape Prevention, in Feminists Theorize
the Political 385 (Judith Butler & Joan W. Scott eds., 1992).

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of some feminisms over others. How can we study this criticallythat is,
without taking sides before we have even detected the stakes?
Second, as GF accedes to governance, it becomes detached from its
intentional coreits specic basis in feminist advocacyand disappears
into legal technologies that we recognize under other rubrics (universalism, American hegemony, technocratic best practices, etc.), and even into
bien pensant legal common sense. It is like watching a drop of water hit
the surface of a pond and merge into the mass. How can we study this?
We do not at all mean to repeat the tedious charge that, by participating
in universal discourses like human rights or by forging legal tools that
can be used by Bushite social conservatives, feminism collaborates with
or is co-opted by existing non-feminist forms of power. These accusations carry with them assumptions that feminism should thwart its own
will to power or stay its hand until it can act in a politically puried world
assumptions that seem completely unreal to us, and for those of us who
are feminists, completely at odds with our politics. But we do feel the
need for new tools to study the specically feminist genealogy of the
much larger technologies of power into which GF inserts itself.
Third, we are interested in the complex outcomes that become possible as GF emanates from western feminism, moves globally via international legal regimes of various kinds, and arrives in locales in which
Western power is feared and resented and in which it is, we think, doing
much harm. If international law is imagined not as a restraint on Empire,
but as one of its many media, what will be the place of imperial feminism
in the local reception of global power? Catharine A. MacKinnon notes
that The post-September 11th paradigm shift, permitting potent response to
massive nonstate violence against civilians . . . shows what they can do
when they want to.269 She urges feminists to mimic the Bush war against
terrorism by pulling every available lever in international law to exert an
equally concerted, equally diffuse resistance to Womens September
11th.270 Happily, from our point of view, we are unlikely to see that happen. But if GF is indeed becoming integrated in international legal regimes that manage and sustain U.S. hegemony, is it time to ask after the
kinds of power that are mediated when white women seek to save brown
women from brown men?271 If feminism does not have the tools to describe them, what social theories should we turn to instead?
Finally, we think it is time to get past the prohibitionist imaginaire that
animates so much feminist legal thinking, and to think even feminisms most
important engagements with international criminal regimes as forms of management, as governmentality in a largely Foucaultian sense. The United
269 Catharine A. MacKinnon, Womens September 11th: Rethinking the International
Law of Conict, 47 Harv. Intl L.J. 1, 1 (2006).
270 Id.
271 Gayatri Chakravorty Spivak, Can the Subaltern Speak?, in Marxism and the Interpretation of Culture 287 (Cary Nelson & Lawrence Grossberg eds., 1988).

2006]

Four Studies in Contemporary Governance Feminism

423

States now makes foreign aid conditional on developing countries adopting


what were originally feminist prohibitionist prostitution rules. Shamir and
Kotiswaran amply demonstrate that the result, so far at least, is not to
end prostitution in Israel and India, but to rearrange the micro-investments
of power locally. International humanitarian law now prohibits sexual slavery in armed conict: we might ask how violence will be channeled, legitimated, intensied, or diffusedsurely we know it will not be stopped
by the addition of this rule.

For Butterfly Migrant Sex Worker


Justice Forum, Toronto 5/12/2015
By Kate Zen

U.S. Anti-Trafficking Laws


& Carceral Politics
Funding law enforcement, border controls, militarized
humanitarianism, and the monitoring of marginalized
populations by invoking moral panic in legislation.

New York Human Trafficking


Intervention Courts

In October of 2013, New York launched 11 human trafficking


intervention courts, which are applauded as the model for other
states in the United States.
As an alternative to incarceration, suspected trafficking victims
may receive an adjournment for contemplation of dismissal (ACD)
if they complete 5 6 sessions with a social service program, and
are not arrested again within 6 months (adjustable).
Social workers practicing trauma-based psychotherapy are
trained to detect if defendants arrested for prostitution charges
are being trafficked.

Savior with Handcuffs?

Racial targeting in
neighborhoods already
facing discriminatory
policing practices.

Red Umbrella Project: Criminal, Victim, or Worker? (2014)

Is it fair to give the


police this much
discretionary power?

Role Play for Justice Fantasy


To qualify for protections and benefits, such as the T-visa, arrested
migrant sex workers are pushed to perform for the law and the
social work system, or face detention, deportation, or
incarceration. Authentic voices and experiences are often
simplified and silenced to perform roles for a justice fantasy.
While some benefit from helpful services, others face trouble with
immigration and criminalization. Even with an ACD, defendants
have a criminal record during the period of adjournment, making it
difficult to find housing or other employment during the interim
period. Many arrested are still repeat offenders. The criminal justice
approach can not provide sufficient social support to change
difficult personal circumstances or alter global economic
inequalities/opportunities.

Where are the voices of migrant sex workers? For


whose agenda are they silenced?

U.S. Anti-Trafficking Laws


Victims of Trafficking and Violence Protection Act (TVPA) of
2000. Reauthorized TVPRA 2003, 2005, 2008.
Three Psprosecuting traffickers, protecting victims of trafficking,
and preventing the practice of trafficking.
TVPA (2000) defined severe sex trafficking as the recruitment,
harboring, transportation, provision or obtaining of a person for the
purpose of a commercial sex act where such an act is induced
by force, fraud, or coercion, or in which the person induced to
perform such an act has not attained eighteen years of age.

Intelligence Reform and Terrorism Prevention Act of 2004


U.S. Trafficking in Persons (TIP) Reports. Tiers 1,2,3.
New York State trafficking laws created in 2007, considered
most comprehensive in the nation, a model for other states.

Girish Gulati, Representing Trafficking:


Media in the United States, Britain, and
Canada. (2010)

Post-9/11 Bush Administration


Focus on Prostitution

Post-9/11 Bush Administration


Focus on Prostitution
At the time of writing, the United States is fighting two
concurrent wars: one a declared war in Afghanistan against the
Taliban and the other an illegitimate occupation of Iraq
committed under false pretenses.
In such a context, combating the traffic in women has become
a common denominator political issue, uniting people across
the political and religious spectrum against a seemingly
indisputable act of oppression and exploitation.
It is commonly assumed that only the most callous would
criticize efforts to free the worlds sex slaves from the clutches of
organized and brutal trafficking networks.
-Gretchen Soderlund, Running from the Rescuers: New U.S. Crusades Against
Sex Trafficking and the Rhetoric of Abolition (2005)

Media Frameworks for Trafficking

Girish Gulati, Representing Trafficking:


Media in the United States, Britain, and
Canada. (2010)

White Slave Trade:


The First Moral Panic

(and its collateral damage)


Rose Livingston, Angel of
Chinatown survivor,
suffragette, self-styled savior
Suffrage movement and
carceral politics,
xenophobia
Page Act of 1875 banning
Chinese women from entry
Chinese Exclusion Act of
1882 First immigration law
targeting ethnic group.

Mary Ting Yi Lui, Saving Young Girls from Chinatown:


white slavery and woman suffrage, 1910-1920. (2009)

Mann Act of 1910, FBI


Creation of first federal criminal
investigation unit.

Justice for Victims of Trafficking


Act (JVTA) of 2015
Passed through U.S. Senate on April 22, 2015. Now in House of Rep.
Funding for law enforcement. Legitimizing the militarization of
police:
Recruiting wounded and retired veterans into special Hero Corps to
rescue child trafficking victims [Sec. 302].
Priority funding for expanding law enforcement units, paying police
salaries and training, and creating new units of judicial prosecutors,
Funding wiretapping initiatives [Sec. 203] and a Cyber Crimes Center
[Sec. 302] specializing in computer forensics and internet surveillance
technologies to be used by the U.S. Immigration and Customs
Enforcement (ICE) in collaboration with the Department of Defense, for
investigative capacity building and data collection.
Emphasis on child pornography. The Child Exploitation Investigations
Unit funds law enforcement initiatives for cyber-surveillance.

First They Came for theI Did Not


Speak Out Because I was Not a

Morality language on sexuality and the global increase of state


surveillance technologies.
UK laws panning pornography coincide with increased government
surveillance of the private lives of its citizens over webcam (Yahoo).
Civil liberties and privacy infringement sex workers and migrants as the first
ones they come for.

Rights not rescue: global justice framework.


Words of a migrant sex worker in the Butterfly community art project, Toronto:
Without Asian workers, Europe and North America would not have
reached its level of development. We neither steal nor rob, so dont
criminalize us for working now in your country. Ask the police to stop
targeting our businesses.
Who does the global north owe its wealth and development to?
Also: Migrants from non-Asian countries, indigenous people, slavery, indentured
servitude, and low-paid female labor.

Rights Not Rescue: A Global Justice


Framework for Migrant Sex Worker Rights

Since all forms of migration are potentially exploitative, strengthening


labor rights and labor organizations of all migrants including sex
workers organizations is an antitrafficking and a human rights strategy.
The challenge is to ensure that trafficking is not marginalized from such
forms of empowerment and relegated to a humanitarian ghetto, and
that undocumented migrants are not legally or socially isolated from
state protection and self-defense.
Advocacy groups may be needed to bridge the gap on an interim
basis, but their goal should be to establish a legal framework and social
capital for self-representation by migrant workers in sending and
receiving states.
- Alison Brysk

Rethinking borders, citizenship in a globalized world, the role of


states, markets, and human rights - for economic justice.