|
Article Excerpt
I. THE TRAGEDY OF INTERNATIONAL CHILD SEX
TRAFFICKING: NO COUNTRY IS IMMUNE FROM THE DRAMA II. THE FIVE "WS" OF SEX TRAFFICKING: UNDERSTANDING THE STORY A. What is the plot in the drama of sex trafficking? B. Where is the story taking place? C. Who are the members of the cast? D. Why is the trafficking production so successful? E. When will the saga end? III. THE FIGHT AGAINST CHILD SEX TRAFFICKING UNDER THE DIRECTION OF THE INTERNATIONAL COMMUNITY A. The Convention on the Rights of the Child: The Most Dramatic of Them All B. The Hague Convention: Serving Abducted Actors C. Protocol on the Sale of Children, Child Pornography and Child Prostitution: An Attempt to Stop the Performance D. U.N. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children: Linking the Producers to the Show IV. THE ROLE OF PREVIOUS U.S. EFFORTS: PREFACE TO n COMMANDING PERFORMANCE A. The Mann Act: The First Act on the U.S. Stage B. An Anthology of Laws C. Foreign Assistance Act: Performing Abroad V. POWERFUL NEW LEGISLATION: THE CLIMAX OF THE STORY A. Trafficking Victims Protection Act of 2000: A Comprehensive Theme 1. Chapter One: Prevention 2. Chapter Two: Protection 3. Chapter Three: Prosecution B. The PROTECT ACT: An Encore to a Successful Performance 1. Strengthening the Action through Tougher Laws 2. Prosecutions under the PROTECT Act: Acting Out the Consequences 3. Operation Predator: Summarizing Past Offenses VI. SUGGESTIONS FOR REVISIONS TO INCREASE CURRENT EFFORTS: AN APPENDIX TO THE STORY VII. CURTAIN CALL: WILL NEW U.S. MEASURES RECEIVE A STANDING OVATION?
I. THE TRAGEDY OF INTERNATIONAL CHILD SEX TRAFFICKING: NO COUNTRY IS IMMUNE FROM THE DRAMA
Ling was thirteen years old and living in Burma when her family sold her to a neighbor under the guise of becoming a domestic worker in another country. (1) The neighbor transported Ling to the Thailand border where she crossed into more than a new country--she walked into a terrifying new life. (2) Her captors took her to a brothel and forced her to have sex up to ten times per day, primarily with clients traveling from wealthy countries where such activities are illegal. (3) All the money she earned went to the brothel manager, who forced Ling to live with the most meager of possessions. (4) After enduring a year of this life and being exposed to the AIDS virus, police arrested Ling in a raid on the brothel and charged her with prostitution. (5) Upon completion of her sentence, officials deported Ling to Burma where there are no laws to protect victims of trafficking. (6) Her perpetrators remain unpunished. (7)
In neighboring Cambodia, however, the police arrested sixty-nine year old Michael Clark, an American tourist, for participating in illicit sexual conduct with two boys under the age of fourteen. (8) Clark has since become the first person in the United States to be indicted under the PROTECT Act--the U.S. legislation designed to curb sexual abuse of children. (9) Due to this strong new legislation and Cambodia's willingness to cooperate with U.S. law enforcement, the Cambodian victims may see punishment meted out, unlike the young girl in Burma. (10)
Sexual exploitation and trafficking in children is a growing affront on human dignity that has gained greater international attention in recent years. (11) Trafficking in persons is one of the most rapidly growing transnational criminal enterprises, (12) with child prostitution skyrocketing despite legislation designed to prevent and control the illegal activity. (13) In response, countries must pool their efforts and unify in the fight against the international trafficking trade--both in those where children are forced into prostitution, as well as those providing a market for such trade. (14) Much legislation has been passed in response to this problem. (15) To date, this legislation has been "all bark and no bite," professing the importance of ending trafficking, but lacking the necessary force to impact this insidious crime. (16) Despite slight efforts by the United States and the international community, the system has not worked to protect children. (17) A multinational response with international coordination of law enforcement is required to thwart the enormous problem of trafficking. (18)
The United States is not immune to the atrocities of sex trafficking in children. (19) Although the extent to which trafficking impacts the United States has been fairly unknown in the general U.S. population, recent news reports and lobbying efforts by nongovernmental organizations (NGOs) (20) indicate a growing increase in public awareness by Americans. (21) In response to recent reports and statistics, (22) President Bush signed the newest piece of legislation, the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (PROTECT Act), (23) into law in the United States and urged the international community to follow suit. (24) This act follows on the heels of the Trafficking Victims Protection Act of 2000 (TVPA) as a way to further strengthen the TVPA's prosecutorial objectives. (25)
The Trafficking Victims Protection Act, in conjunction with the new PROTECT Act, offers promise. The PROTECT Act targets individuals--both U.S. citizens who commit sexual crimes against children abroad, and those who enter the United States to illegally traffic children. The TVPA approaches the issue from a more universal standpoint and provides measures for accountability of entire nations as opposed to individual perpetrators through bilateral and multilateral solutions. (26) The United States is making strides in the fight against trafficking but can only do so much without the assistance of other nations.
This Comment first addresses the scope of the problem of sex trafficking in children. Next, it evaluates prior global legislation and analyzes why previous efforts failed to substantially curb trafficking. This Comment will then analyze the TVPA and PROTECT Act as a two-pronged legislative tool and compare how this legislation is different from past attempts to control trafficking. Finally, this Comment will offer a number of suggestions to help further increase the success of anti-trafficking efforts of the United States and the international community.
II. THE FIVE "WS" OF SEX TRAFFICKING: UNDERSTANDING THE STORY
It is almost inconceivable that sexual slavery, through the trafficking of women and children, exists today. Not only is it a reality, but trafficking also is one of the largest and fastest growing human rights challenges facing the international community. (27) The story of sex trafficking in children is played out on stages around the world. It affects producers, directors, and audiences alike, all of whom reap enormous profits and royalties from the victimization of the most innocent of actors: children.
A. What is the plot in the drama of sex trafficking?
In 2000, the U.S. Congress found that trafficking in persons had become a modern form of slavery, globally affecting at least 700,000 persons--primarily women and children--each year. (28) The 2003 Trafficking in Persons Report (TIP Report) published by the U.S. State Department estimates that the number of people trafficked annually across international borders has increased to between 800,000 and 900,000. (29) The United Nations approximates that each year 1.2 million children are trafficked worldwide. (30) These numbers relate to victims who are trafficked from one country into another and do not include the number of people trafficked within their own countries. (31)
The ramifications of trafficking in children reach far beyond the mere deprivation of human rights. (32) Trafficking contributes to the social breakdown of families and communities, interferes with the passing of cultural values, and thus weakens society as a whole. (33) This phenomenon divests countries of human capital, promotes crime, and undermines public health. (34) In some countries, the financial gain from trafficking has led to government corruption and organized crime, which overwhelms the resources of law enforcement, immigration, and the judiciary. (35) Further, lack of financial resources makes it impossible for some countries to effectively prosecute offenders or protect victims. (36)
Profits from trafficking by "travel" agents, pimps, and criminal organizations are estimated at five to ten billion dollars per year. (37) The International Labour Organization (ILO) describes trafficking as "the underside of globalization." (38) Trafficking is linked to a myriad of other criminal activities such as money laundering and document fraud. (39) U.S. Attorney General John Ashcroft recognized that "[t]rafficking is a transnational criminal enterprise. It recognizes neither boundaries nor borders." (40) Secretary of State Colin Powell emphasized that it is critical to the United States' relationship with the international community to become involved on a global issue of such magnitude. (41)
The international community differs on what constitutes sex trafficking. (42) For the purposes of this Comment, the definitions from the TVPA are used. The TVPA defines sex trafficking as "the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act." (43) "Severe forms of trafficking in persons" is partially defined as, "sex trafficking in which a commercial sex 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." (44)
The World Tourism Organisation defines sex tourism as "trips organized from within the tourism sector, or from outside this sector but using its structures and networks, with the primary purpose of effecting a commercial sexual relationship by the tourist with residents at the destination." (45) Americans participate in "sex tours," for which they receive an itinerary that includes stops at restaurants and bars that serve as a front for child prostitution brothels. (46)
B. Where is the story taking place?
Sex trafficking in children is a problem that affects all nations, not merely those that are under-developed or lack adequate protection for victims. (47) "Sending countries," (48) or "countries of origin," (49) are those countries from which children are taken. In the case of sex tourism, "sending countries" are the countries from where the perpetrator came. "Destination countries" are those that receive trafficked children. (50) Thus, some countries are both sending and receiving countries. (51) Regardless of how a country is characterized, none is immune from the vast criminal enterprise of sex trafficking. (52)
C. Who are the members of the cast?
An assortment of actors participates in the transnational crime of trafficking in children. According to the U.S. Congress, perpetrators of the crimes of prostitution, pornography, and sex tourism primarily target victims who are disproportionately affected by poverty, who lack access to education or employment, or who lack economic opportunities in the countries of origin. (53) These marginalized groups of people carry little political authority, so they not only are unable to help themselves on an individual level, but they also lack the ability to effectively influence their leaders. (54)
Child victims are often deceived by their perpetrators. (55) Some children are told they will be taken to a prosperous country to find work or to be educated. (56) These children are then forced into prostitution either as permanent sex slaves or until they have repaid their accrued traveling debt. (57) However, not all victims are promised a better life when entering the sex trade. (58) In some instances, family members sell children to the owners of brothels that are visited by sex tourists. (59) Others are kidnapped and transported to cities or countries where child prostitution flourishes. (60)
D. Why is the trafficking production so successful?
A multitude of reasons are attributed to why children continue to be victims of trafficking, and these reasons vary from country to country. (61) The common variable for all victims is that they are exploited, whether by a family member, their community, or even a corrupt government. (62) How and why this exploitation permeates young lives is found in varying explanations in countries around the world.
First, scholars point to the fact that the lack of consensus over the definition of "child" has added to the problem of sex trafficking. (63) If the international community cannot even define who is a child, how can it possibly identify one who is being victimized? The United Nations Convention on the Rights of the Child defines "child" as a person under the age of eighteen. (64) Thus, child sex trafficking laws should protect those seventeen and younger. However, if a country considers the age a person can consent to sexual activity to be less than eighteen, the country's laws take precedence. (65) This problem is further promulgated in countries where births are not formally recorded or where a false identification card is easily accessible. (66) If countries cannot agree upon who qualifies as a child, it is likely that a substantial number of victims are unidentified and unprotected. (67)
Poverty is another root of trafficking. (68) Lack of resources generates vulnerability. (69) Victims are often unable to support themselves and have no means to escape their plight, thus making them easy prey for traffickers. (70) Although these victims become the property of brothel owners, their basic needs of survival are being met. (71) On the flip side, patrons from wealthy nations have the ability to travel to countries where laws to protect children from sex crimes do not exist, or are not enforced. (72) These perpetrators also can afford to change venues if a country begins to enact or exercise child sexual exploitation laws. (73) The widening gap between developed and developing countries enhances the problem of trafficking. (74) The financial disparity among countries leads to the victimization of children from poorer countries by perpetrators of wealthy nations. (75) Further, economically unstable countries victimize their own people to receive some of a prosperous nation's wealth. (76)
While poverty contributes to the trafficking problem, it is only one factor. (77) Indeed, the governments of some impoverished countries fully comply with the TVPA's minimal standards for eliminating sex trafficking. (78) Trafficking prospers when local law enforcement condones it, whether implicitly or explicitly. (79) Traffickers cannot conduct their activities in private--customers must also know where to go to access victims. (80) It only stands to reason that if customers know where the brothels are, local police must also know. (81) The reason trafficking thrives in these locations is twofold: law enforcement is overwhelmed, and lacking in resources, and police corruption has led to involvement of officers in the sex ring. (82) Trafficking is especially prevalent in countries involved in armed conflict or civil unrest due to instability because it displaces women, and children become victims under corrupt or powerless governments. (83)
Additionally, organized crime plays a large role in many countries where trafficking occurs. (84) Sophisticated crime networks operate seamlessly throughout the various stages of the trafficking process. (85) The United Nations defines organized criminal groups as "associations of three or more people, existing for some time with the goal of committing a serious crime for financial or material gain." (86) Since large amounts of money are involved in sex trafficking, it has become the third-largest source of income for organized crime groups. (87) Organized crime syndicates are found in origin and destination countries. (88) Traffickers have been compared to drug cartels in their ability to smuggle their goods across borders and utilize advanced communications to their benefit. (89)
Global trafficking in children has also grown in part due to porous borders and increasing technological capacities. (90) Billions of dollars are implicated in the trafficking industry (91) in countries where there is a relatively low risk of being arrested. (92) Even in countries that have laws against trafficking, the prosecution of traffickers is often non-existent due to corruption in law enforcement or the victims' fear of testifying. (93) Moreover, in some countries the victims are charged and prosecuted for illegal sex acts rather than being treated as victims of a crime. (94)
Finally, although there is a high incidence of HIV/AIDS infection within the community of trafficked children, (95) misconception about the disease actually leads some people to feel safer sexually abusing young children. (96) Some tourists believe children are less likely to be infected with AIDS and are therefore safe sex partners. (97) A number of cultures believe a myth that sex with a virgin will cure the disease and therefore seek young virgins through the trafficking industry. (98)
E. When will the saga end?
The crime of trafficking in children is certainly not a new one, (99) nor is it a crime that will be eradicated in the near future. (100) The international community has acknowledged the horrific crimes associated with the exploitation of children and has made initial attempts to put an end to them. (101) The United States in particular has fortified its resources and placed trafficking problems in the forefront of domestic and international priorities. (102) However, affecting the enormity of the problem is only feasible if all nations take a strengthened stance and unite in the fight. Until that time, the story of sex trafficking in children will continue to evolve.
III. THE FIGHT AGAINST CHILD SEX TRAFFICKING UNDER THE DIRECTION OF THE INTERNATIONAL COMMUNITY
Numerous international treaties, conventions, and resolutions have been drafted in an effort to combat sexual abuses against children. (103) The predominate strength in most international agreements is the emphasis placed on raising awareness. (104) While these documents are valuable in many ways, (105) they certainly have their limitations. (106) One significant weakness is that some countries will not be signatories, or will not ratify all, or part of, a treaty. (107) Further, while a duty is imposed on the countries that are parties to the convention, legal rights are not afforded to private individuals, so each country must regulate on its own. (108) The global problem of trafficking must be addressed both bilaterally and multilaterally. (109) The United Nations Charter requires member states to "respect human rights and fundamental freedoms" and to "take the necessary action, in cooperation with the United Nations, to achieve this purpose." (110) Analysis of a selection of legislation geared toward reducing child exploitation illustrates the intentions and shortcomings of previous international efforts.
A. The Convention on the Rights of the Child: The Most Dramatic of Them All ...
One example of an effort made to protect child victims is the Convention on the Rights of the Child (hereinafter Convention). (111) Intended as a powerful protection measure for children, the Convention was signed by all U.N. member nations and ratified by all but the United States and Somalia. (112) The Convention enumerates specific rights guaranteed to children, such as protection from torture and mistreatment. (113) Moreover, the Convention explicitly distinguishes exploitive acts and instructs parties to pass laws to protect children from these practices. (114) The Convention calls for a ban on the separation of a child and family to counter-act the influences that lead to child trafficking. (115)
On paper, the Convention looks promising, but in application it has limitations. (116) The biggest shortcoming of the Convention is a lack of guidance on how to create and implement laws to protect children. (117) Moreover, the Convention's expectations are vague. (118) For example, it calls only for "appropriate" measures to be taken and for procedures to be outlined, but it does not mandate the implementation of such procedures....
|
