This Article argues that because of its historical and ongoing investments in settler colonialism, the Canadian state has long been complicit and continues to be complicit in the human trafficking of indigenous women and girls in Canada. In addition to providing indigenous bodies for labour and sexual exploitation, Canada’s trafficking of indigenous people has been essential not only to securing the indigenous lands required for the nation’s existence, but also in facilitating the speedy colonial elimination of indigenous people—whether through assimilation, forced emancipation, or death. Human trafficking, as such, has been essential to securing domination of indigenous peoples and territories throughout Canadian colonial history. This Article pays particular attention to the Canadian state’s uses of law to enable the trafficking of indigenous women and girls (and indigenous peoples, generally).
This Article explores the role of race in the prostitution and sex trafficking of people of color, particularly minority youth, and the evolving legal and social responses in the United States. Child sex trafficking has become a vital topic of discussion among scholars and advocates, and public outcry has led to safe harbor legislation aimed at shifting the legal paradigm away punishing prostituted minors and toward greater protections for this vulnerable population. Yet, policymakers have ignored the connection between race and other root factors that push people of color into America’s commercial sex trade.
This Article argues that race and racism have played a role in creating the epidemic of sex trafficking in the United States and have undermined effective legal and policy responses. Race intersects with other forms of subordination including gender, class, and age to push people of color disproportionately into prostitution and keep them trapped in the commercial sex industry. This intersectional oppression is fueled by the persistence of myths about minority teen sexuality, which in turn encourages risky sexual behavior. Moreover, today’s antitrafficking movement has failed to understand and address the racial contours of domestic sex trafficking in the United States and even perpetuates the racial myths that undermine the proper identification of minority youth as sex trafficking victims. Yet, the Obama administration has adopted new policies that raise awareness about the links between race and sex trafficking. These policies also facilitate the increased role of minority youth as leaders and spokespersons in the antitrafficking movement. Their voices defy stereotypes about Black sexuality and call upon legislators and advocates to address some of the unique vulnerabilities that kids of color face with respect to sex trafficking.
This Essay examines the potential influence of a new breed of actor in the global antitrafficking arena: the venture philanthropist, or “philanthrocapitalist.” Philanthrocapitalists have already helped rebrand “trafficking” as “modern-day slavery,” and have expressed their ambitions to lead global efforts to eradicate the problem. With their deep financial resources and access to powerful networks, philanthrocapitalists hold tremendous power to shape the future trajectory of the antitrafficking movement. This Essay warns, however, against the possibility that philanthrocapitalists could also reconfigure the landscape of global antitrafficking policymaking, marginalizing or even displacing other actors’ efforts to address the problem.
Many immigrants’ rights advocates and scholars have recognized the undocumented worker exploitation that takes place when immigration restrictions enter the workplace, which create incentives for employer misconduct and increase the vulnerability of workers without status. However, little has been discussed about the broader implications of the currently expansive immigration enforcement regime for a general theory of free labor rights, which is derived from the 13th Amendment and other labor and employment laws. Historically, the advancement of free labor (and the prevention of illegitimate coerced labor) relied on legal interventions that prohibited servitude and promoted workplace protections to ameliorate power inequities between the employer and worker. Although these protections theoretically apply regardless of citizenship status, due to their illegality under immigration laws, undocumented workers often accept substandard conditions out of fear of the alternative—deportation. This Article suggests that when workplace alternatives are constrained to this degree, a free labor problem arises. Drawing from scholarship addressing free labor theory and research at the intersection of immigration law and workplace rights, this Article highlights the structurally coercive effects of immigration restrictions in the workplace. Coercion persists in the undocumented workplace, not because of inadequate employment and labor protections, but because immigration policies have created a criminal class of workers, who are denied remedies for workplace exploitation because their illegality renders them consensual in the workplace exploitation. This contract-based conception of undocumented labor perceives undocumented workers as engaging in a collusive relationship with their employers, in which they freely comply with substandard working conditions and voluntarily remain in the U.S. without legal status. The notion that these workers willingly accept their exploitation nullifies their coercion claims, fueling the law’s continued preference of immigration enforcement over labor rights and rendering the assertion of labor rights ineffective. Free labor rights seek to correct coercion in the workplace. Yet, the illegality of undocumented workers places them beyond coercion or outside the protection of free labor remedies.
Over the last twenty years, domestic sexual trafficking of children has received increased attention from state and national policymakers and advocates. Indeed, states across the country have enacted laws establishing harsh new penalties for individuals convicted of domestic sexual trafficking. At the same time, arrest and conviction rates for Black girls within the juvenile justice system are increasing, often as a result of prostitution-related offenses. In this Article, I explore the race, gender, and class dynamics that animate these trends. In particular, I highlight the ways in which historic constructions of childhood, innocence, and sexuality shape antitrafficking law enforcement practices and how they have functioned in racialized and gendered ways to exclude Black girls from protection. Consequently, Black girls who are subject to sexual exploitation in the contemporary era are often labeled as offenders rather than victims. In sum, I contend that the intersectional identities of poor Black girls at once render them vulnerable to sexual exploitation and deny them access to protective antitrafficking regimes. To combat the discrimination that Black girls experience as a result of this exclusion, I propose decriminalization of girls who are subject to trafficking and robust investment in supportive race- and gender-conscious institutions that can prevent sexual exploitation.
The Trafficking Victims Protection Act (TVPA) considers all youth less than eighteen years of age trafficking victims without a showing of force, fraud, or coercion. The presumption is that minors cannot legally consent to sex and thus are always victims. Being characterized as a victim helps youth access support services and avoid prosecution in certain circumstances. However, local and state governments struggle to provide all youth with comprehensive resources. Additionally, legal and advocacy interventions fail to substantively engage racialized vulnerabilities that serve as pathways into the sex trade and the juvenile justice system.
Black girls are disproportionally prosecuted for prostitution offenses yet their narratives are seldom heard. Controlling images of Black womanhood, as unvirtuous, immoral, and blameworthy, impact interactions between Black girls and the juvenile justice system, as well as, service providers. By overlooking race, the TVPA and antitrafficking advocates do not anticipate and remedy the complexity of applying a victim standard to Black girls and other marginalized youth.
Consequently, the TVPA and antitrafficking discourse fail to respond to the economic forces driving sexual exploitation and sexual exchange. Rather, interventions to address the Commercial Sexual Exploitation of Children (CSEC) have put forth a limited narrative—magnifying sensationalized depictions of violence and force—and focus primarily on strengthening law enforcement apparatuses, which reinforce racial profiling and oversurveillance in low-income communities of color.
Therefore, this Comment challenges the use of victim rhetoric in antitrafficking interventions and confronts the absence of racial discourse when devising next-steps. Centering the unique experiences of Black girls reveal the limitations of current narratives and strategies deployed in antitrafficking policies, which include failing to create nonjudgmental services and viable alternatives to sex work for youth.