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American Legal Discourse on Child Trafficking: the Re/Production of Inequalities and Persistence of Child Criminalization

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The London School of Economics and Political Science American Legal Discourse on Child Trafficking: The Re/production of Inequalities and Persistence of Child Criminalization Pantea Javidan A thesis submitted to the Department of Sociology of the London School of Economics for the degree of Doctor of Philosophy, London, January 2017 1 Declaration I certify that the thesis I have presented for examination for the MPhil/PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work of others (in which case the extent of any work carried out jointly by me and any other person is clearly identified in it). The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without my prior written consent. I warrant that this authorisation does not, to the best of my belief, infringe the rights of any third party. I declare that my thesis consists of 99,751 words. Statement of use of third party for editorial help: I can confirm that my thesis was copy edited for conventions of language, spelling and grammar by Reza Javidan, PhD, Sociology (1995). 2 Abstract The criminalization of children commercially-sexually exploited through prostitution persists despite trafficking laws recognizing this as one of the worst forms of exploitation committed against the most vulnerable social group. This thesis examines the re/production of inequalities in American legal discourse on child trafficking, and why child criminalization persists in this context. Employing a child-centered framework built from multi-conscious feminism and the sociologies of law and childhood, it examines mechanisms of othering and criminalization in key legislative debates, statutes and cases of the United States generally as well as two states exemplifying the retributive and child-protective modes of handling child trafficking. It identifies three themes or issues often presented as binaries that structure child trafficking discourse—adult/child, victim/offender and consent/non-consent—and examines how these are deployed to penalize children in general, and minority and immigrant children in particular. First, processes of marginalization related to race, class, gender and immigration have been vital to the construction of childhood (as normative/deviant) in and through trafficking and prostitution laws, which are reproduced through different types of discourses in both states. Second, both retributive and child-protective modes of response preserve child criminalization by maintaining the tension between prostitution and trafficking, and the female culpability associated with prostitution, including through the denial of the victimization of “repeat offenders.” Finally, despite its prohibition, prostitution is conceptualized in contractual terms, which imputes consent to identities constructed through this discourse and renders commercial-sexual exploitation as merely or primarily involving acts of sale, purchase and consumption. 3 TABLE OF CONTENTS CHAPTER 1: The Sociological Significance of What is Legislated ............. 8 1.1 Introduction ............................................................................................................................. 8 1.1.1 Dimensions of the Problem: Urgency, challenges and multidimensionality .................... 9 1.1.2 Terminology ..................................................................................................................... 13 1.2 Literature Review .................................................................................................................. 15 1.2.1 Disproportionalities and disparate impact ....................................................................... 18 1.2.2 Punishment and Protection .............................................................................................. 26 1.2.3 Contextualizing and Understanding “Trafficking” Sociologically .................................. 26 1.3 Sociological Tensions ............................................................................................................. 36 1.4 Chapter Summaries .............................................................................................................. 49 CHAPTER 2: Deconstructing the Bad Subject ............................................ 52 2.1 Methodological Overview ..................................................................................................... 52 2.1.1 Discourse, Genealogy and Social Construction ............................................................... 55 2.1.2 Critical Legal Discourse Analysis ................................................................................... 58 2.1.3 Theorizing Multiplicities ................................................................................................. 69 2.2 Methods .................................................................................................................................. 77 2.2.1 Selection of Laws ............................................................................................................. 77 2.2.2 Textual Research and Process .......................................................................................... 79 2.2.3 The Problem and Search Terms ....................................................................................... 80 2.2.4 Selection of States ............................................................................................................ 83 CHAPTER 3: Provisional Childhood ........................................................... 91 3.1 The Contingencies of Child Protection ................................................................................ 91 3.1.1 Traditionalism and retributivism in Utah ......................................................................... 93 3.1.2 Human rights versus “the oldest form of work” in Illinois ............................................ 112 3.2 Historical Presence .............................................................................................................. 130 3.2.1 The Age of Consent ....................................................................................................... 130 3.2.2 “White Slavery” ............................................................................................................. 137 CHAPTER 4: Ideal and Culpable Victims ................................................. 154 4.1 The Construction of Prostitution and Sex Trafficking .................................................... 160 4.1.1 “Prostitution” as punitive code ...................................................................................... 160 4.1.2 Physical and cognitive boundaries ................................................................................. 165 4.2 Utah’s State level bifurcation of prostitution and sex trafficking .................................. 169 4.2.1 Breaking with retributivism? ......................................................................................... 169 4.2.2 “I guess, the prostitutes” ................................................................................................ 173 4.2.3 Culpable victimhood ...................................................................................................... 178 4.2.4 Comparing prostitution and DMST within the retributive framework of Utah ............. 188 4.3 Illinois’ state level bifurcation of prostitution and DMST .............................................. 192 4.3.1 “These are not nice girls”: Illinois on prostitution ......................................................... 192 4.3.2 Illinois on DMST ........................................................................................................... 197 4.4 Emergent forms of penalization under a protective cover .............................................. 209 4.5 Quasi-criminalization: “Protective Custody” ................................................................... 211 CHAPTER 5: The Illusory Promise of Contract ....................................... 222 5.1 Terms of contract ................................................................................................................ 224 5.2 Contractarian consequences ............................................................................................... 245 5.3 Race, class and gender: decontextualized consent ........................................................... 262 5.4 Imputing commercial and sexual consent to minors ........................................................ 273 5.5 Multiplicity: incorporating childhood and punishment .................................................. 283 CHAPTER 6: Conclusion ............................................................................. 289 6.1 Racialization, Criminalization and Non-Childhood ........................................................ 289 4 6.2 Neoliberalism and the Erosion of Childhood .................................................................... 290 6.3 Multidimensional Gender and Feminist Multiplicity ...................................................... 291 6.4 The adult/child binary and sex work theory ..................................................................... 296 6.5 Sex work theory and non/consent ...................................................................................... 303 6.6 The
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