The Link Between Prostitution and Human Trafficking

Inextricably Bound: The Link Between Prostitution and Human Trafficking

Dan O’Bryant and Ian Speir *

Table of Contents

I. Introduction ...... 2 II. Human trafficking: a crime of global magnitude and shocking brutality ...... 5 A. Global magnitude ...... 6 B. Shocking brutality ...... 7 III. Why trafficking happens ...... 9 A. Organized crime ...... 9 B. Demand ...... 12 C. Other factors: supply, cost, market size, and migration flows ...... 13 IV. Prostitution and the link to trafficking ...... 13 A. Cross-country econometric analyses ...... 15 B. Individual-country case studies ...... 16 1. Sweden ...... 16 2. Denmark ...... 17 3. Norway ...... 17 4. Netherlands ...... 17 5. Germany ...... 18 C. Other evidence ...... 18 V. Taking trafficking seriously ...... 21 A. Why legalization violates Palermo Protocol article 9 ...... 21 B. States’ “positive obligations” to combat trafficking under Rantsev ...... 22 C. Implications of a Palermo Protocol violation ...... 25 1. International dispute resolution ...... 25 2. Treatment under the TVPA of countries who have legalized ...... 26 VI. Conclusion ...... 30

I. Introduction

Human trafficking is “one of the dark sides of globalization.”1 As international investment, trade, and migration have increased, so also has the illegal cross-border movement of human beings for purposes of forced labor, sexual servitude, and other forms of exploitation.2

The problem is both widespread and hidden. Human trafficking affects nearly every country on earth,3 with some 20.9 million victims worldwide.4 Of these, 14.2 million people are trafficked for labor, and 4.5 million are trapped in sexual slavery, according to estimates from the International Labour Organization (“ILO”).5

Trafficking in human beings for the purpose of sexual exploitation (“sex trafficking”) is particularly heinous. To call it a gross violation of basic human rights – rights of bodily integrity, health, and freedom from violence, among others – is to tell only half the story. Sex trafficking demands special moral and legal attention because of its victims: fully 98% are women and girls.6 While the plight of male victims, particularly boys, cannot be diminished, it’s impossible to miss the gendered dimensions of this problem. In a world where women and girls already suffer disproportionately from poverty, violence, and lack of education, sexual exploitation only deepens their inequality and vulnerability.7

And it’s a problem that is not going away. The international response to modern slavery began in November 2000 with the adoption by the UN General Assembly of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (“Palermo Protocol”).8 That same year, Congress enacted the Trafficking Victims Protection Act, the

1 Seo-Young Cho, Alex Dreher & Eric Neumayer, Does Legalized Prostitution Increase Human Trafficking?, 41 World Development 67, 67 (2013). 2 See Gergana Danailova-Trainor & Patrick Belser, “Globalization and the illicit market for human trafficking: an empirical analysis of supply and demand,” Int’l Labor Org. Working Paper 53 (Dec. 2006), at 19 http://www.ilo.org/wcmsp5/groups/public/---ed_norm/--- declaration/documents/publication/wcms_081931.pdf. 3 UN Office on Drugs & Crime, Global Report on Trafficking in Persons, at 37 (2014) (“Trafficking in persons is a crime of global scope that leaves virtually no country unaffected”); 4 Int’l Labour Org., Global Estimate of Forced Labour, at 13 (2012). 5 Id. The remaining 2.2 million victims include individuals forced to be soldiers by governments and rebel groups, and other victims of forced labor, such as prison labor that contravenes international standards. 6 ILO, Global Estimate 2014, at 14; UNODC, 2014 TIP Report, at 37 (similarly putting the figure at 97%). 7 UNICEF, The State of the World's Children 2006, at 12; Int’l Labour Org., Combating Child Labor Through Education, at 10 (rev. 2008); Iris Yen, Comment, Of Vice and Men: A New Approach to Eradicating Sex Trafficking by Reducing Male Demand through Educational Programs and Abolitionist Legislation, 98 J. Crim. L. & Criminology 653, 654 (2008) (“Impoverished women and girls from developing countries are vulnerable to all forms of human trafficking and exploitation, but they are especially vulnerable to sex trafficking.”). In passing the Trafficking Victims Protection Act, Congress recognized that “[t]raffickers primarily target women and girls, who are disproportionately affected by poverty, the lack of access to education, chronic unemployment, discrimination, and the lack of economic opportunities in countries of origin.” 22 U.S.C. § 7101(b)(4). 8 Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, adopted Nov. 15, 2000, G.A. Res. 55/25, U.N. GAOR, 55th Sess., Annex II [hereinafter “Palermo Protocol”], http://www.ohchr.org/EN/ProfessionalInterest/Pages/ProtocolTraffickingInPersons.aspx.

2 cornerstone of human trafficking legislation in the United States.9 Since then, governments and international organizations have devoted increased attention and resources to human trafficking. There’s growing social awareness of the problem. Countless nonprofits and nongovernmental organizations (“NGOs”) have sprung up with emotive calls to “end slavery in our lifetime.”

In spite of these efforts, the problem persists. The ILO’s estimate of victims of sexual slavery globally went from 1.4 million in 2005 to 4.5 million in 2012.10 The UNODC’s 2014 Global Report on Trafficking in Persons soberly noted that “the number of convictions globally has remained extremely low” and “we have continued to see an increase in the number of detected child victims, particularly girls under 18.”11 Tragically, trafficking in persons remains far too common.

As this tragedy continues to grow, another trend has surfaced: efforts to legalize prostitution. While prostitution – the sale of sexual services for money – remains illegal in most of the world, several countries have enacted laws to normalize “sex work” as a legitimate occupational choice. The Australian state of Victoria did so in the mid-1990s.12 The Netherlands legalized in 2000.13 Perhaps most notably, when Germany made prostitution legal in 2002,14 the country quickly became the largest prostitution market in Europe,15 with an estimated 400,000 sex workers and an industry valued at €16 billion per year.16

In May 2016, Amnesty International adopted a policy in favor of legalization, calling on governments around the world to “decriminalize consensual sex work” and to “include sex workers in the development of laws that affect their lives and safety” and ensure they are “protected from harm, exploitation and coercion.”17 Amnesty’s press release notes that it “joins a large group of organizations” advocating legalization, including the Global Alliance Against Trafficking in Women, Global Commission on HIV and the Law, Human Rights Watch, UNAIDS, the UN Special Rapporteur on the Right to Health, and World Health Organization.18

9 Pub. L. 106-386 (Oct. 28, 2000), 22 U.S.C. §§ 7101-7113; see U.S. Dep’t of State, “U.S. Laws on Trafficking in Persons,” http://www.state.gov/j/tip/laws/. 10 Compare Int’l Labour Org., ILO Minimum Estimate of Forced Labour in the World, at 1 (2005) (estimating 1.39 million in forced labour for commercial sexual exploitation), with ILO,Global Estimate 2014, at 13 (estimating 4.5 million). The ILO urges caution when comparing its 2005 and 2014 reports but notes that the 2012 estimate, “at 20.9 million victims globally, is considerably higher than ILO’s first estimate of a minimum of 12.3 million forced labourers.” ILO,Global Estimate 2014, at 17. 11 UNODC 2014, supra note _, at 1. 12 Karen Hindle, Laura Barnett & Lyne Casavan, Prostitution: A Review of Legislation in Selected Countries, http://www.lop.parl.gc.ca/content/lop/researchpublications/prb0329-e.htm. 13 Andrea Di Nicola et al., National Legislation on Prostitution and Trafficking in Women and Children (2005), at 39 14 Andrea Di Nicola et al., National Legislation on Prostitution and Trafficking in Women and Children (2005), at 24 15 “Unprotected: How Legalizing Prostitution Has Failed,” Der Spiegel, May 30, 2013, http://www.spiegel.de/international/germany/human-trafficking-persists-despite-legality-of-prostitution-in- germany-a-902533.html. 16 Jim Reed, “Mega-brothels: Has Germany become 'bordello of Europe'?”, BBC Newsnight, Feb. 21, 2014, http://www.bbc.com/news/world-europe-26261221. 17 Amnesty Int’l, “Amnesty International publishes policy and research on protection of sex workers’ rights,” May 25, 2016, http://www.amnestyusa.org/news/press-releases/amnesty-international-publishes- policy-and-research-on-protection-of-sex-workers-rights. 18 Id.

Proponents of legalization liken prostitution to “work” and maintain that women can make a voluntary choice to become prostitutes.19 Proponents argue that legalization will improve working and safety conditions for sex workers, facilitate access to workplace benefits (like healthcare, unionization, and workers’ compensation), reduce violence, and reduce trafficking by allowing sex businesses to recruit women who choose prostitution freely.20 The reality, however, is far more grim.

Legalization does not deliver the benefits its proponents promise.21 More alarmingly, legalization invariably results in an increase in trafficking. Though scholars and activists have made this point for years based on case studies of countries and regions where prostitution was made legal,22 there is now a growing body of empirical literature that links legalization with increased trafficking.23 Indeed, we are not aware of a single empirical study that points in the opposite direction.

The reasons for this link are well-understood. Legalization destigmatizes demand for commercial sex and lowers risks to traffickers seeking to exploit women and girls for sex.24 It

19 Nadejda K. Marinova & Patrick James, “The Tragedy of Human Trafficking: Competing Theories of European Evidence,” 8 Foreign Policy Analysis 231, 235 (2012). The evidence does not support this view. Most women who sell their bodies for sex were sexually abused as children and entered prostitution before the age of eighteen. See Max Waltman, “Prohibiting Sex Purchasing and Ending Trafficking: The Swedish Prostitution Law,” 33 Mich. J. Int’l L. 133, 138-39 (2011). These vulnerabilities are often enhanced by poverty, homeless, “an almost total lack of positive social supports,” and “an extremely negative self-concept and a depressed emotional state.” Id. at 139 n.25 (quoting Mimi H. Silbert & Ayala M. Pines, “Sexual Child Abuse as an Antecedent to Prostitution,” 5 Child Abuse & Neglect 407, 486 (1981)) (internal quotation marks omitted). 20 See Cho et al., supra note 1; Chi Adanna Mgbako et al., “The Case for Decriminalization of Sex Work in South Africa,” 44 Geo. J. Int’l L. 1423, 1437-41 (2013); Andrew Breiner, “These 3 Graphs Could Change Your Mind About Legalizing Sex Work,” ThinkProgress, July 31, 2015, https://thinkprogress.org/these-3-graphs-could-change-your-mind-about-legalizing-sex-work- 346ea00c8037. 21 See Wim Huisman & Edward R. Kleemans, “The challenges of fighting sex trafficking in the legalized prostitution market of the Netherlands,” 61 Crime, L. & Soc. Change 215, 217 (2014) (noting that in the Netherlands, “[t]he legal position of prostitutes is not good” and “the emotional well-being of prostitutes was lower than before legalization of prostitution on all measured aspects; the use of sedatives had increased; and the number of prostitutes with a pimp had not decreased”); Federal Ministry for Family Affairs, “Health, Well-Being and Personal Safety of Women in Germany” (2007), http://www.cahrv.uni- osnabrueck.de/conference/SummaryGermanVAWstudy.pdf (noting the unusually high rates of physical psychological, and sexual violence experienced by female prostitutes in Germany; the only other comparable group is female prisoners); “Unprotected: How Legalizing Prostitution Has Failed,” Part 2, Der Spiegel, May 20, 2013, http://www.spiegel.de/international/germany/human-trafficking-persists-despite- legality-of-prostitution-in-germany-a-902533-2.html (noting that Germany’s prostitution law “had not brought about any measurable actual improvement in the social coverage of prostitutes,” “[n]either working conditions nor the ability to exit the profession had improved,” there was “no solid proof that the law had reduced crime,” and “[h]ardly a single court had heard a case involving a prostitute suing for her wages”). 22 See, e.g., Catherine A. MacKinnon, “Trafficking, Prostitution, and Inequality,” 46 Harv. Civil Rights-Civil LIberties L. Rev. 271, 304 (2011) (“[E]xperience shows that when prostitution is legalized, trafficking goes through the roof.”). 23 See Cho et al., supra note 1; Danailova-Trainor & Belser, supra note 2; Niklas Jakobsson & Andreas Kotsadam, “The Law and Economics of International Sex Slavery: Prostitution Laws and Trafficking for Sexual Exploitation,” 35 European J. Law & Econ., 87 (2013). 24 Jakobsson & Kotsadam, supra note 23, at 92.

4 makes trafficking harder to detect.25 And legalization reduces incentives to prosecute because it turns the commercial sex industry into a legitimized source of economic activity and, importantly for the state, tax revenues.26

In short, legalization fosters an environment where exploitation and trafficking thrive. If trafficking is a crime of “vast impunity,”27 legalization only makes it more so.

National and international policymakers must take seriously the clear link between legalization and trafficking. Article 9 of the Palermo Protocol obligates state-parties both to “prevent and combat trafficking in persons” and to “discourage the demand” that fosters exploitation and leads to trafficking.28 Legalization of prostitution, by increasing trafficking, stimulating demand, and making trafficking harder to detect and prevent, specifically undermines the purposes of the Palermo Protocol and Article 9. We argue that states who legalize prostitution are in violation of their Article 9 obligations. We explore the potential political and legal implications of Article 9 violations below.

II. Human trafficking: a crime of global magnitude and shocking brutality

Article 3 of the Palermo Protocol sets forth the most widely accepted definition of trafficking. The definition has three essential elements:

1. The commission of certain acts: recruitment, transportation, transfer, harboring or receipt of persons

2. By improper means: threat or use of force, “other forms of coercion,” abduction, fraud or deception, abuse of power or a position of vulnerability, or payment of money or benefits “to achieve the consent of a person having control over another person”

3. For the purpose of exploitation: exploitation includes, “at a minimum,” “the prostitution of others,” forced labor, slavery or servitude, and the removal of organs.29

The U.S. State Department uses a similar, more succinct definition that captures these three elements: trafficking is “the act of recruiting, harboring, transporting, providing, or obtaining a person for compelled labor or commercial sex acts through the use of force, fraud, or coercion.”30 Legal instruments, scholars, and activists use a variety of other terms for trafficking, including “modern-day slavery.”

25 See supra Part IV.C. 26 See Anjilee Dodge & Myani Gilbert, “His Feminist Facade: The Neoliberal Co-Option of the Feminist Movement,” 14 Seattle J. for Soc. Just. 333, 350-51 (2015); Marinova & James, supra note 19, at 234. Indeed, in 2009, the brothel industry in the state of Nevada was asking to be taxed because they saw it as “‘an insurance policy’ against the Legislature’s deciding one day to do away with the industry.” Steve Friess, “Nevada brothels want to pay tax, but state says no,” N.Y. Times, Jan. 26, 2009, http://www.nytimes.com/2009/01/26/world/americas/26iht-brothel.1.19671349.html; see also infra Part IV.C 27 UNODC, Glo-TIP 2014, at 52 28 Palermo Protocol art. 9(1)(a), (5). 29 Palermo Protocol art. 3(a) 30 U.S. Dep’t of State, Trafficking in Persons Report 2015, at 7 (July 2015); see also 22 U.S.C. § 7102(9)- (10) (defining trafficking for purposes of U.S. federal law).

Other international instruments related to human trafficking include the European Convention on Human Rights, which prohibits “slavery or servitude,”31 including sexual slavery;32 and the Council of Europe Convention on Action against Trafficking in Human Beings, which (like the Palermo Protocol) requires states to take measures to prevent trafficking and to “discourage the demand” that fosters trafficking.33

A. Global magnitude

Trafficking is a problem of global magnitude, affecting nearly every country on earth. The United Nations Office of Drugs and Crime’s latest Global Report on Trafficking in Persons, published in 2014, documents the trafficking flows that crisscross the world, noting that “between 2010 and 2012, victims with 152 different citizenships were identified in 124 countries across the globe.”34

Trafficking is both an intraregional and transregional phenomenon. Most trafficking is intraregional, and “victims tend to be trafficked from poor countries to more affluent ones” within a given region.35 The same phenomenon is evident in transregional flows. Victims are often trafficked from the “global south” – East and South Asia and Sub-Saharan Africa – to rich countries in the Middle East, Western Europe, and North America.36

Trafficking must be understood in this global context. Income disparity and geographic proximity determine international trafficking flows.37 As we discuss below, this has important implications for countries that have chosen or that are considering legalization of prostitution.

Sex trafficking is a crime of shocking brutality. “[A] majority of trafficked women are under the age of 25, with many in their mid to late teens.”38 They may be kidnaped outright or lured into the trade with false promises of good jobs or marriage and other economic opportunities.39 Traffickers often provide false documents and transportation to move victims to their destinations, then charge victims exorbitant fees, creating lifetime debt-bondage. Typically, women are stripped of their identity documents and passports, threatened, beaten, raped, and forced into prostitution. Children, mainly girls, are often bought from poor parents and sold into prostitution.40

31 Euro. Convention on Human Rights art. 4(1), http://www.echr.coe.int/Documents/Convention_ENG.pdf. 32 See Prosecutor v. Kunarac, Case No. IT-96-23 (Int’l Crim. Tribunal for Former Yugoslavia Feb. 22, 2001). 33 Council of Euro. Convention on Action against Trafficking arts. 5-6, https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/090000168008371d. 34 UNODC, Glo-TIP 2014, at 7. 35 UNODC, Glo-TIP 2014, at 7; Francis T. Miko & Grace (Jean-Hyun) Park, CRS Report for Congress “Trafficking in Women and Children: The U.S. and International Response” at 1-2 (Mar. 26, 2004), available at http://fpc.state.gov/documents/organization/9107.pdf (““Generally, the flow of trafficking is from less developed countries to industrialized nations, including the United States, or toward neighboring countries with marginally higher standards of living.”). 36 UNODC, Glo-TIP 2014, at 7. 37 See UNODC, Glo-TIP 2014, at 7. 38 Francis T. Miko & Grace (Jean-Hyun) Park, CRS Report for Congress “Trafficking in Women and Children: The U.S. and International Response” at 3-4 (Mar. 26, 2004), available at http://fpc.state.gov/documents/organization/9107.pdf. 39 Id. 40 Kara C. Ryf, The First Modern Anti-Slavery Law: The Trafficking Victims Protection Act of 2000, 34 Case W. Res. J. Int'l L. 45, 46 (2002); Miko & Park, supra, at 3-4.

The United States, the European Union, and the international community consider human trafficking a grave violation of human rights and matter of pressing international concern.41 The Palermo Protocol obligates signatory states to prevent trafficking, punish traffickers, and protect victims – the so-called “3P” paradigm.42 Today, 170 countries are parties to the Protocol.43 As noted earlier, the United States passed the Trafficking Victims Protection Act (TVPA) in 2000 with the goal of ending modern day slavery. The vision for such an act can be traced back to the Thirteenth Amendment, Section 1 in 1865 that stated “Neither slavery nor involuntary servitude except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” 44

Despite these broad-based international commitments, trafficking remains a growing problem. Available data indicates that trafficking has only increased since adoption of the TVPA and the Protocol in late 2000.45 The UNODC estimates that some 2 billion people – fully a third of the world’s population – “live in a situation where trafficking is not criminalized” as required by the Palermo Protocol.46 Trafficking remains “a crime of vast impunity.”47

Public resources devoted to combating trafficking are depressingly low. According to ILO estimates, human trafficking generates $150 billion in profits per year. Trafficking for purposes of sexual exploitation accounts for nearly two-thirds of the total, generating $99 billion in annual profits.48 By contrast, the world’s richest countries combined spend an estimated $124 million annually on anti-trafficking efforts – a figure that represents 0.08% of the size of the industry.49

B. Shocking brutality

As helpful as the academic literature in this area is, it tends to sanitize the reality of sex trafficking. The real stories of victims and survivors are important as econometric analyses, and to that end, we offer three here, two of which are based on personal interviews with survivors.

41 See Trafficking Victims Protection Act of 2000, Pub. L. [cite], sec. 102(b)(23); Charter of Fundamental Rights of the European Union, art. 5(3); UN General Assembly Res. 64/293, Aug. 12, 2010 (“[r]eiterating” the General Assembly’s “strong condemnation of trafficking in persons, especially women and children, which constitutes a serious threat to human dignity, human rights and development”); Rome Statute of the Int’l Criminal Court, art. 7 (identifying “trafficking in persons, particularly women and children,” as a crime against humanity). 42 See Palermo Protocol, preamble. 43 United Nations Treaty Collection, “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime” (status as of Jan. 24, 2017), https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12- a&chapter=18&clang=_en. 44 U.S. Constitution, 13th Amendment, Section 1 45 See discussion supra. 46 UNODC, Glo-TIP 2014, at 52. 47 UNODC, Glo-TIP 2014, at 52. 48 ILO, Profits and Poverty: The Economics of Forced Labour, at 13-14 (2014), http://www.ilo.org/wcmsp5/groups/public/---ed_norm/--- declaration/documents/publication/wcms_243391.pdf. 49 Martina Ucnikova, “OECD and Modern Slavery: How much aid money is spent to tackle the issue?”, Anti-Trafficking Review, Issue 3, pp.133-150, at p.138 (Sep. 2014), http://www.antitraffickingreview.org/index.php/atrjournal/issue/view/3.

“Alice” had just become a teenager on the south side of Chicago, when she was first sexually assaulted by her mother’s boyfriend. She had always been an excellent student, but soon her grades started to fall. While her mom worked, the boyfriend started coming over more often to “help out.” He raped her regularly and told her if she ever told anyone, he would kill her mother. Alice eventually ran away from home for a new life, one free from the rapes that had become the norm. She had no money and lived on the streets for six days before she was befriended by a man. He let her stay at his apartment and treated her like his girlfriend. He eventually told her that they needed money and she could “help” by having sex with some of his friends. She refused, and he beat her and left her locked in the closet. Two days later she was gang raped by a group of his friends. This was the beginning of her new life. She became one of his eight girls, and was sold an average of seven or eight times each day. She wanted to die.50

Cora was a young girl from Moldova. Her brothers took her to the city where she worked at a disco. A man told her she could make a great deal of money in discos in Romania. She went with him and ended up in Germany, where prostitution is legal. Nuremberg was her new home, and she was raped for an entire day. Cora knew she had no choice. She worked in a legal brothel on Frauentormauer, and was visited by men from all over the world for up to eighteen hours per day. Her customers even included local police officers. When she refused her pimp’s demand to work a twenty-four hour shift, he stabbed her in the face with a knife. She went to a hospital, and there called a customer’s cellphone, and he helped her escape to Romania. She filed charges against the pimp. She had chosen the right course of action, yet her pimp soon called her and promised to track her down.51

“Maria” was thirteen years old when her mother remarried. Her father had physically abused her mother from her earliest memory. He left with another woman when she was nine. Her parents had always used drugs, but after he left, her mother was constantly stoned. Her new step-dad sold drugs, and for the first time in her life she started using drugs. They moved to a new city and a much nicer house. When her mom was unconscious after another night of partying, her step-dad came to her room and raped her. She had been a virgin. He told her if she ever told anyone, he would kill her and her mother. The rapes became routine, and this became her new life . . . but then it got even worse. When school ended, her stepdad told her mother that he would send her to a summer camp. She was thrilled to get away, but found out that her “camp” was an Asian massage parlor outside the gates of a major U.S. military installation. Because of her youth she was in constant demand, and was sold to ten to twelve men each day. The majority of the men were active duty and were willing to pay more for such a young girl. The stepdad came back just before school started and brought her home, and she went back to junior high school. But now, every weekend, her step-dad took her back to the Asian massage parlor, while telling her drugged-out mom that she was visiting friends. The next summer she went back to “camp” at the massage parlor. This is how she spent the next four years of summers and weekends. After she graduated from high school, and having contemplated suicide many times, she finally took the chance to run away. She traveled across the country, and over the next decade graduated from college. She is a rare case: she is a survivor and has a life. But the memories of her childhood never leave her.52

50 “Alice” April 25, 2015. Personal interview by Dan O’Bryant. We have used an alias for the interviewee to protect her privacy. 51 “Unprotected: How Legalizing Prostitution Has Failed,” Part 3, Der Spiegel, May 20, 2013, http://www.spiegel.de/international/germany/human-trafficking-persists-despite-legality-of-prostitution-in- germany-a-902533-3.html. 52 “Maria” March 7, 2015. Personal interview by the Dan O’Bryant. We have used an alias for the interviewee to protect her privacy.

These are the real faces of prostitution and trafficking.

III. Why trafficking happens

Trafficking is a lucrative criminal business. In contrast to drugs and weapons that can be sold only once, a person trafficked for sex can be sold again and again, magnifying the profit potential of trafficking.53 “To the traffickers, people are highly profitable, low risk, expendable, reusable, and resalable commodities.”54 Recent estimates put trafficking profits on par with or ahead of the global arms trade (estimated at $100 billion per year55), and second only to the drug trade (estimated at $435 billion per year56).

Profit is at the root of trafficking,57 and traffickers are profit-maximizers.58 The academic literature analyzes trafficking as an economic activity and draws on the broader literature on the “economics of crime.”59 Consistent with that literature, we focus on demand, supply-side factors, and the role of organized crime. We begin with the latter.

A. Organized crime

In major cities in the United States, pimps can make over $200,000 annually per prostitute they control.60 Profits like this don’t go unnoticed for long: human trafficking has become the “the crime of choice” for organized criminal networks operating around the world.61

53 Susan W. Tiefenbrun, “Sex Sells but Drugs Don't Talk: Trafficking of Women Sex Workers and an Economic Solution,” 24 T. Jefferson L. Rev. 161, 175 (2002). 54 Amy O'Neill Richard, International Trafficking in Women to the United States: A Contemporary Manifestation of Slavery and Organized Crime, DCI Exceptional Intelligence Analyst Program: An Intelligence Monograph, November 1999, 3 (Central Intelligence Agency April, 2000), p.1, https://www.cia.gov/library/center-for-the-study-of-intelligence/csi-publications/books-and- monographs/trafficking.pdf. 55 Sergio Finardi et al., “The Arms Trade Treaty: Building a Path to Disarmament,” Solutions Journal, vol. 4(2) (Mar. 2013), https://www.thesolutionsjournal.com/article/the-arms-trade-treaty-building-a-path-to- disarmament/. 56 Holly Ellyat, “Global drugs trade 'as strong as ever' as fight fails,” CNBC, Aug. 13, 2013, http://www.cnbc.com/id/100957882. 57 Tiefenbrun, supra note [37], at 174. 58 Jakobsson & Kotsadam, supra note 21, at 88. 59 Jakobsson & Kotsadam, supra note 23, at 88-89 (citing numerous studies); John Morrison & Beth Crosland, “The trafficking and smuggling of refugees: the end game in European asylum policy?”, UNHCR (New Issues in Refugee Research), Working Paper No. 39, at 41-42 & nn.131-136, http://www.unhcr.org/en-us/research/working/3af66c9b4/trafficking-smuggling-refugees-end-game- european-asylum-policy-john-morrison.html. see also Cho, supra note 1, at 68 (discussing “what economic theory suggests regarding the effect of the legalization of prostitution on trafficking” and citing numerous studies). 60 Meredith Dank et al., “Estimating the Size and Structure of the Underground Commercial Sex Economy in Eight Major US Cities,” p.79 , Urban Institute (Mar. 2014) (noting that in Washington, D.C., a pimp can make “$234,000 a year for one girl if [she] meet[s] the quota”); see also id. at 90, 116, 129 (estimating that pimps in other major cities earn $500-$1,000 per day per prostitute). “Pimp” is a generic term that refers to anyone “who facilitates prostitution and profits in some way from that facilitation.” Id. at 9. 61 Tiefenbrun, supra note [37], at 178. Richard, CIA Report, supra note [38], at 55 (“The international trafficking trade appears to be highly organized, involving sophisticated international networks of procurers, document forgers and providers, escorts, organizers, financiers, corrupt officials, and brothel operators.”).

As noted by Steve Harvey, formerly the head of Europol’s organized crime unit, human trafficking is now “one of the most prevalent organized crime activities” in the European Union.62

The impact of organized crime in the EU, the United States, and other parts of the world has been devastating. Organized crime goes to the heart of a nation’s domestic security and has grown as the demand for trafficked persons has increased.63 But there is clearly a lack of good empirical studies on the complexities and size of the problem. Historically we have thought of organized crime as large, hierarchical, often ethnic-based groups such as the Yakuza in Japan and the Cosa Nostra in Italy and the United States.64 While these traditional groups are involved in sex trafficking, there has been the development of loosely organized crime groups that use a more “entrepreneurial” model. By using individuals and smaller groups for various aspects of the sex trafficking, they leave a smaller footprint. By being less centralized in their structure and more flexible in the methods of operation, they have posed a substantial problem for law enforcement.65

These type of organized groups have become very common in the cities of the United States. Street gangs have added prostitution and sex trafficking as high-profit, low-risk enterprises. A recent three-year study funded by the National Institute of Justice looked the role that street gangs play in sex trafficking in the San Diego area. The number of victims that are sexually exploited each year ranges between 3417 – 810866 with 30% being between the ages of 13-17.67 It is estimated that 110 gangs in the area (34% white, 32% black, and 24% Hispanic)68 have built an annual $810 million business based on sex trafficking and prostitution. Roughly 80% of the trafficking victims were born in the United States, which mirrors other major cities which is somewhat surprising considering the shared border with Mexico.69 This is a very comprehensive report, and needs to be studied by law enforcement agencies throughout the United States. All the major cities in the United States report similar problems with gangs, and the scope of sex trafficking continues to grow.

Another watershed investigation that began in 2014 just released a study that revealed approximately 313,000 victims of human trafficking in Texas. One of the most disturbing statistics highlighted that roughly 79,000 minors and youth are victims of sex trafficking. Noel Busch-Armendariz, Director of the Institute on Domestic Violence and Sexual Assault at the University of Texas at Austin School of Social Work, who led the study stated, “Few states have this kind of insight into the number of people being exploited, and importantly, each count

62 “Monitoring Mechanisms in the Fight Against Human Trafficking,” Expert Meeting, Oct. 14, 2010, p.11, available at http://lastradainternational.org/lsidocs/Final%20Report%20Monitoring%20mechanisms%20in%20the%20f ight%20against%20human%20trafficking.pdf. 63 European Commission, “The EU Internal Security Strategy in Action: Five Steps Towards a More Secure Europe”, com 210 (673) Final, 22 November 2010, 4. 64 Alexis A. Aronowitz, “The Human Trafficking—Organized Crime Nexus” in Felin Allum and Stan Gilmour eds. Routledge Handbook of Transnational Organized Crime (London and New York: Routledge, 2012), 222. 65 Id. 66 “The Nature and Extent of Gang Involvement in Sex Trafficking in San Diego County” Final Report submitted to U.S. Dept. of Justice, National Institute of Justince, by University of San Diego and Point Loma Nazarene Uiversity, January 2016 at 83. 67 Id. at 90. 68 Id. at 13. 69 Id. at 94.

10 reflects a human being living among us in slavery like conditions. Our finding certainly give us all a call to action.70

An incomplete list of gangs that are active in cities throughout the United States as provided by the FBI includes: ABT, Banditos, BGD, Bloods, Brown Pride, Crips, Da Mob, DMI, Florencia 13, Folk Nation, Gangster Disciple, HAMC, Houstone, Latin Kings, MS-13, Mexican Mafia, Nortenos, Omen MC, Sons of Silence MC, South Side Locos, Starz Up, Surenos, TB, TS, Vice Lords, and 18th Street.71 The National Gang Intelligence Center (NGIC) was established by the FBI in 2005 to fight the ever-increasing growth of gangs. In 2013, 244 NGIC law enforcement partners from throughout the country, stated that in their jurisdictions, gangs were involved in prostitution and juvenile prostitution.72

While these studies show the scope of the problems in the United States, where prostitution is illegal (with the exception of the ten counties in Nevada), the EU has a bigger problem: its largest economy, Germany, has had legalized prostitution since 2002. An EU commission found that organized crime groups (OCG) were active in various criminal endeavors throughout the continent. Some of the most common OCGs are Italian mafias, Chinese, Russian/Georgian, Eastern European, British, Dutch, Turkish, Nigerian, and motorcycle gangs. All the gangs diversify by using illegal profits to invest in legitimate businesses.73 The investments in bars, restaurants, clubs, and hotels are often used to run prostitution rings.74 While the report gave estimates of the revenues that different illicit markets produced annually throughout the EU, when it came to trafficking it stated that estimates were available in only a few countries. In Italy and France, it was estimated that sex trafficking produced profits of over 3 billion annually in each country.75

One group that has expanded throughout the EU are Outlaw Motorcycle Gangs (OMG). Hells Angels and the Banditos have doubled the numbers of such gangs in Germany alone between 2005 and 2012.76 While the Banditos and Hells Angels originated in the United States, they have become warring factions in Germany and most parts of Europe. They battle to control prostitution, sex trafficking, brothels, and the drug trade. It is estimated that there are over 6,000 motorcycle gang members in Germany, with Hells Angels being the dominant gang.77 In early September 2016, an open house evening for the brothels in the “red light district” of Frankfort, had thousands celebrating, even though it is well known that the district is controlled by the Hells Angels.78 In October 2016, the President of Germany’s Hells Angels, Aygun Mucuk, was murdered and shot 16 times outside the clubhouse in Wettenberg by competing OMG

70 UTNEWS, January 24, 2017, The University of Texas 2017 71 The 2013 National Gang Report, https://www.fbi.gov/file...state-services-publications-national-gang- report-2013, at 44. 72 Id. at 43. 73 Savona Emesto U. & Ricardi Michele (Eds.) 2015, From “Illegal markets to legitimate businesses: the Portfolio of organized crime in Europe. Final Report of Project OCP-Organized Crime Portfolio (www.ocportfolio.eu). Trento: Transcrime-Universta degli stud: di Trento.2015, at 13. 74 Id. at 15. 75 Id. at 35. 76 The Global Initiative – Against Transnational Organized Crime “Angels, Outlaws and Mongols” by the Global Initiative Posted October 6, 2013. 77 Id. 78 Dr. Ingeborg Kraus, “German Model is Producing Hell on Earth” speech given in Vancouver Canada on Sept. 20, 2016 for the “International Approaches to Prostitution”.

11 members. Hells Angels from throughout Europe gathered for his funeral, leading to speculation that continued turf wars are likely.79

As already noted, the legalization of prostitution in Germany has opened the door for increased trafficking. Manfred Paulus, a criminal investigator with years of experience, states that “Germany has become a center for sexual exploitation of women from Eastern Europe, as well as a sphere of activity for organized crime groups from around the world.”80 On another occasion he said, “Germany, with this law, became an Eldorado for traffickers, pimps, and brothel owners.”81

One of the major difficulties that complicates Germany’s and the EU’s ability to deal with organized crime is the Schengen System. This is the policy by which roughly 400 million EU citizens can cross borders without passports, or any real border control. While this has been very beneficial to the business climate and culture of Europe, OCGs have also used it for expanding their trafficking enterprises.82 The refugee crisis has also played a major part in what has become a problem with no quick or easy fixes. Currently there are over 4 million Syrian refugees in Jordan, Turkey, and Lebanon. As Syria continues to disintegrate, these numbers will probably increase, with an increasing number of refugees trying to find their way to Greece and ultimately other EU nations.83 The impact the crisis has already had on Germany is evident. In 2015, over 1 million refugees arrived in Germany, including approximately 67,000 unaccompanied children, a group that is extremely susceptible to sex-trafficking.84

B. Demand

Male sexual demand fuels the global commercial sex trade. It dictates the treatment and characteristics of victims, the location of brothels, and the size and direction of trafficking flows. It is no exaggeration to say that demand is the sine qua non of trafficking.85

But male demand for commercial sex is neither innate nor a social fait accompli. “Human beings are not born wishing to buy commercial sexual services” from strangers.86 Rather, demand is a social, cultural, and historical construct. It is influenced by cultural attitudes about sex and masculinity, the social status of women, and individual perceptions of women and harm toward victims. Demand is sensitive to price, and it responds to perceptions of risk – legal risks (like prosecution and punishment), health-related risks, and reputational risks.87 A look at the percentage of men from various countries who have paid for sex at least once illustrates this

79 Gangsters Out Blog, Sunday October 9, 2016, Ganstersoutt.blogspot.com. 80 Spiegel Online “How Legalizing Prostitution has Failed” Part 3: Germany’s Human Trafficking Problem, Thursday, 5/30/13 3:41 PM 81 Dr. Ingeborg Kraus, “German Model is Producing Hell on Earth” speech given in Vancouver Canada on Sept 20, 2016 for the “International Approaches to Prostitution”. 82 BBC News, “Schengen: Controversial EU Free Movement Deal Explained” 24 April 2016. 83 Carnegie Europe, “How the Refugee Crisis Will Reshape the EU” Stephan Lehne, February 4, 2016. 84 U.S. Dep’t of State, Trafficking in Persons Report 2016, at 178, available at https://www.state.gov/documents/organization/258876.pdf. 85 Yen, supra note 7, at 666-68. 86 Bridget Anderson & Julia O’Connell Davidson, “Is Trafficking in Human Beings Demand Driven? A Multi-Country Pilot Study,” IOM Migration Research Series, p.41 (2003), https://www.compas.ox.ac.uk/media/ER-2004-Trafficking_Demand_Driven_IOM.pdf. 87 Yen, supra note 7, at 668-73.

12 fact: less than 8% in the United Kingdom and Sweden, 15% in the United States, 16% in France, 27% in Spain, 37% in Japan, 59% in Cambodia, and 75% in Thailand.88

This means that demand for commercial sex is malleable. It can be shaped and altered, stimulated or reduced. The malleability of demand is at the heart of the Palermo Protocol’s requirement that countries take measures – legislative, educational, social, and cultural – “to discourage the demand . . . that leads to trafficking.”89 Law has an important role to play because the legal regime around prostitution affects people’s moral attitudes about purchasing sex.90

C. Other factors: supply, cost, market size, and migration flows

Supply is another determinant of trafficking profits. Victims of sex trafficking are primarily women and children. Poverty enhances vulnerability to trafficking, and traffickers often target the poor for sexual exploitation. Victims tend to be trafficked from poor origin countries to more affluent destination countries.91

The costs and related risks of trafficking operations are also important. Increased risk due to prosecution and punishment enhances costs to traffickers and reduces the volume of trafficking. Thus, “[a] crucial factor for the profitability of commercial sex is the legal framework surrounding it.”92 That legal framework encompasses both the existence of laws that punish trafficking and how rigorously those laws are actually enforced.

The size of the potential market for commercial sex also drives trafficking. Affluent countries tend to be destinations for international trafficking because traffickers make more per victim in these countries. And regional differences are stark. The ILO estimates that per-victim profits in the United States and EU are two to nine times per-victim profits in the Middle East, Asia-Pacific, and Africa.93

Finally, the existence of established migration routes tends to reduce the costs of trafficking and thus enhances trafficking flows.94

IV. Prostitution and the link to trafficking

88 ProCon.org. “Percentage of Men (by Country) Who Paid for Sex at Least Once: The Johns Chart” January 6, 2011 89 Palermo Protocol, art. 9(5). 90 See Andreas Kotsadam & Niklas Jakobsson, “Do Laws Affect Attitudes? An Assessment of the Norwegian Prostitution Law Using Longitudinal Data,” 31 Int’l Rev. L. & Econ. 103, 109-10 (2011). 91 UNODG, Glo-TIP 2014 at 7. 92 Jackobsson & Kotsadam, Prostitution and Trafficking, at [page]. 93 ILO, Profits and Poverty: The Economics of Forced Labour, at 14 (2014), http://www.ilo.org/wcmsp5/groups/public/---ed_norm/--- declaration/documents/publication/wcms_243391.pdf. The ILO estimates that annual profits per victim in the United States and EU for all forms of forced labor (sexual or otherwise) is $34,800. Profits per victim of sex trafficking specifically are likely much higher. See supra note [] and accompanying text (estimating that per-victim profits are over $200,000 per year in major U.S. cities). 94 Morrison & Crosland, supra note 59, at 3-4; Janice G. Raymond et al., “A Comparative Study of Women Trafficked in the Migration Process,” Coalition Against Women in Trafficking, July 19, 2002, http://www.catwinternational.org/Home/Article/96-a-comparative-study-of-women-trafficked-in-the- migration-process.

While governments throughout the world view trafficking as a grave human rights issue, the same is not true of prostitution. Countries take different policy and legal approaches to their commercial sex markets. Most criminalize every aspect of a commercial sex transaction: the prostitute, the buyer, and third parties (e.g., brothels). The literature refers to this as a “prohibitionist” model.95

In a few countries, like the Netherlands and Germany, prostitution is fully legal. The government regulates and taxes brothels, and usually imposes legal requirements (like registration and periodic medical examinations) on prostitutes, who are recast as “sex workers.” The literature sometimes calls this model “regulationism.”96 We refer to it as legalization.

Other countries fall somewhere between prohibition and legalization. In an “abolitionist” model, the government permits prostitution but prohibits brothels. A “neo-abolitionist” regime criminalizes buyers and third parties but not the prostitute herself. Neo-abolitionism is often called the “Nordic model” because Sweden was the first to adopt it in 1999, followed by Finland, Iceland, Norway, Northern Ireland, and most recently France. The Nordic model views prostitution as a form of violence and the prostitute as a victim, not a criminal.

Scholars and policymakers have debated for many years the link between prostitution and trafficking. On the one hand, one would expect that tolerating prostitution, especially through legalization, leads to an increase in trafficking. Legalization eliminates the legal risks and social stigma attached to the purchase of commercial sex, pushing demand higher. Legalization also has supply effects. The prospect of additional profits will motivate new prostitutes to enter the market, and some of that additional supply will be filled by traffickers seeking to exploit the market. Following Cho and her colleagues, we call this the “scale effect” of legalization.97

Theoretically, there is a contrary effect – the “substitution effect” – which rests on the intuition that, if prostitution becomes legal, sex businesses in the newly expanded market will want to operate legally. They will avoid employing trafficking victims so as not to jeopardize their legal status. Under legalization, then, sex businesses will substitute away from trafficking victims and prefer “legitimate” sex workers, i.e., those who choose prostitution voluntarily.98

Although the net combined result of the scale effect and substitution effect is theoretically ambiguous, anecdotal evidence has long pointed to the predominance of the scale effect. As Melissa Farley has noted, “[e]vidence supports the theory that legal prostitution is associated with increased trafficking,” and “[w]herever prostitution is legalized, trafficking to sex industry marketplaces in that region increases.”99 The State Department’s 2007 Trafficking in

95 Jackobsson & Kotsadam, Prostitution and Trafficking, at [page]; Di Nicola et al., supra note [], at 14. 96 Jackobsson & Kotsadam, Prostitution and Trafficking, at [page]; Di Nicola et al., supra note [], at 14. 97 See Cho et al., supra note 1, at 69. 98 See id. 99 Melissa Farley, “Theory versus reality: Commentary on four articles about trafficking for prostitution,” 32 Women’s Studies Int’l Forum 311, 313 (2009); see also Donna M. Hughes, “The ‘Natasha’ Trade: The transnational shadow market of trafficking in women,” 52 Journal of International Affairs 625, 651 (2000) (“Legalization of prostitution is sometimes thought to be a solution to trafficking in women, but evidence seems to show that legalized sex industries actually result in increased trafficking to meet the demand for women to be used in the legal sex industries. Increased activity of organized crime networks also accompanies increases in trafficking.”); Catherine A. MacKinnon, “Trafficking, Prostitution, and Inequality,” 46 Harv. Civil Rights-Civil LIberties L. Rev. 271, 304 (2011) (“[E]xperience shows that when prostitution is legalized, trafficking goes through the roof.”).

Persons Report took the position that “prostitution is inherently harmful and dehumanizing and fuels trafficking in persons.”100

Recently, scholars have started to bring some analytical rigor to these claims, and studies confirm the inextricable link between prostitution and trafficking: in countries where prostitution is legal, sex trafficking is more prevalent. Below, we discuss the econometric literature, individual country case studies, and other evidence that confirms this link.

A. Cross-country econometric analyses

A 2006 study by the ILO was one of the first forays into econometric analysis of sex trafficking.101 Examining cross-country data, the authors, Gergana Danailova-Trainor and Patrick Belser, found that countries that are more open to globalization – i.e., the cross-border movement of goods and services – have higher levels of prostitution and are more likely to be destination places for victims of trafficking.102 While this study confirmed that higher levels of prostitution are associated with higher levels of trafficking in a given country, the authors did not empirically test any direct link between prostitution and trafficking or whether legalization causes trafficking to increase.103

Two studies picked up where Trainor and Belser left off. In 2012, Cho and her colleagues used econometric analysis to investigate the impact of legalization on trafficking, finding that “[c]ountries where prostitution is legal experience a larger reported incidence of human trafficking inflows.”104 In 2013, Niklas Jakobsson and Andreas Kotsadam published a similar finding.105 Using European cross-country data, they found that sex trafficking is least prevalent in countries where prostitution is illegal (prohibitionist and Nordic model countries), most prevalent in countries where prostitution is legal, and “in between” for countries that have adopted an abolitionist model (permitting commercial sex transactions but criminalizing the involvement of third parties).106

These studies confirm that the scale effect of legalization predominates over any substitution effect: as the market for commercial sex expands with legalization, trafficking tends to increase.107 In interpreting these findings, some caution is warranted due to the quality of the data, as all the authors recognize.108 Nonetheless, we are not aware of any study that suggests the opposite, i.e., that trafficking decreases under legalization.109

100 U.S. Dep’t of State, Trafficking in Persons Report 2007 (June 2007), at 27 (emphasis added); see also U.S. Dep’t of State, The Link Between Prostitution and Sex Trafficking, Nov. 24, 2004, https://2001- 2009.state.gov/r/pa/ei/rls/38790.htm. 101 Trainor & Belser, supra note 2, at 1. 102 Id. at iv, 8. 103 Id. at 19, 23-24. 104 See Cho et al., supra note 1, at 71-72. 105 Jakobsson & Kotsadam, supra note 23, at 102. 106 Id. 107 Cho et al., supra note 1, at 74. 108 See Trainor & Belser, supra note 2, at 24; Cho et al., supra note 1, at 69; Jakobsson & Kotsadam, supra note 23, at 102. 109 Indeed, because legalization makes trafficking harder to detect and reduces the incentive to prosecute it, one would expect (all else being equal) that trafficking data for countries that have legalized will be underreported compared to a situation where prostitution remains illegal. To my knowledge, no empirical study attempts to account or compensate for this phenomenon. (Given the quality of existing data, it may

B. Individual-country case studies

Case studies of particular countries provide additional confirmation for the link between legalized prostitution and trafficking. We focus on five below: Sweden, Denmark, Norway, the Netherlands, and Germany.

1. Sweden

Sweden has garnered most of the scholarly attention because it is the pioneer of the Nordic model. The Swedish Law that Prohibits the Purchase of Sexual Services, which went into effect in 1999, criminalizes the buyer but not the seller in a commercial sex transaction.110 The law specifically removes criminal consequences to the seller – the prostitute – because it views this person as a victim of male violence, the “weaker partner who is exploited by those who want only to satisfy their sexual drives.”111

Available data show that, after enactment of the law, the prevalence of both prostitution and trafficking in Sweden decreased. There was a marked decline in the number of female prostitutes in Sweden between 1995 and 2008, from approximately 3,000 to 600.112 Contrast these figures to Sweden’s Nordic neighbors Denmark and Finland. “In Denmark, 5,500 to 7,800 women are prostituted every year,” 113 even though Denmark’s population is only about 60% of Sweden’s.114 With Finland, the difference is even more staggering. While Finland’s population is about the same as Denmark’s,115 “approximately 10,000 to 15,000 women from Estonia, Russia, Latvia and Lithuania are prostituted in Finland every year.”116

Qualitative evidence points in the same direction. Europol and Swedish police report that Sweden was not an attractive market for traffickers after the prostitution law went into effect. In wiretapped conversations, “traffickers have expressed frustration about setting up shop in Sweden and attracting customers who are willing to buy their women in prostitution.”117 “Other not be possible to do so.) But it suggests that the link between prostitution and trafficking is even stronger than what the available data show. 110 Gunilla Ekberg, “The Swedish Law That Prohibits the Purchase of A Sexual Service: Best Practices for Prevention of Prostitution and Trafficking in Human Beings,” 10 Violence Against Women 1187, 1192 (2004). 111 Id. at 1188 (quoting Swedish Ministry of Labour, “Kvinnofrid,” at 55 (1998)) (internal quotation marks omitted); see also id. at 1191-92, 1208. 112 Waltman, supra note 19, at 146; see also Jakobsson & Kotsadam, supra note 23, at 101 (“[I]t is highly plausible that the quantity of prostitution decreased in Sweden in the years after the passing of the law[.]”); Ekberg, supra note 110, at 1194 (noting “[t]here is no evidence that the sale of women has moved from the streets to the Internet”). 113 Gunilla Ekberg, “The Swedish Law That Prohibits the Purchase of A Sexual Service: Best Practices for Prevention of Prostitution and Trafficking in Human Beings,” 10 Violence Against Women 1187, 1199 (2004). 114 See Waltman, supra note 19, at 146. 115 Compare U.S. Cent. Intelligence Agency, “Finland,” The World Factbook, https://www.cia.gov/library/publications/the-world-factbook/geos/fi.html, with U.S. Cent. Intelligence Agency, “Denmark,” The World Factbook, https://www.cia.gov/library/publications/the-world- factbook/geos/da.html. 116 Ekberg, supra note 113, at 1199 117 Id. at 1200-01 (detailing the operational difficulties pimps and traffickers now face under the law); see also Marinova & James, supra note 19, at 239 (“[T]he [Swedish] law discouraged would-be traffickers from starting a business.”).

16 procurers in recorded conversations mentioned possibly moving to Southern Europe, where travel is easier and visas not required to the extent they are in Scandinavia.”118

Commentators have also noted that Sweden’s law changed public attitudes about prostitution, trafficking, and the purchase of commercial sex. “In 1996, only forty-five percent of women and twenty percent of men in Sweden were in favor of criminalizing male sex purchasers.”119 By 2008, those numbers had risen to 79% and 60%, respectively.120 The law was also central to a successful nationwide advertising campaign “aimed at increasing public awareness about prostitution and trafficking in women by pinpointing the buyers.”121

2. Denmark

Cho and her colleagues find further support for the scale effect of legalization by comparing trafficking levels in Sweden and Denmark. Denmark’s law is similar to what Sweden’s was prior to 1999: in Denmark, it is not illegal for individual buyers and sellers to engage in a commercial sex transaction, but brothel operation is prohibited. Currently, in both Sweden and Denmark, the ratio of identified trafficking victims to prostitutes is about the same (approximately one identified victim for every three prostitutes). But in Denmark, the actual numbers are much higher: Denmark has three to four times more prostitutes and trafficking victims than Sweden, even though Denmark’s population is smaller. The implication is clear: restricting prostitution reduces trafficking, and vice-versa.122

3. Norway

Another Nordic neighbor of Sweden, Norway, offers evidence of the link between legalization and trafficking. Until recently in Norway it was legal to both buy and sell sex. In 2009, Norway adopted a prostitution law similar to Sweden’s, in which the buyer but not the seller is subject to criminal penalties.123 Since passage of the law, there have been decreases in street prostitution, escort Internet advertising, and sex trafficking cases.124 Moreover, there was no reported increase in the indoor prostitution market, and “no new public arenas for prostitution were found.”125 As in Sweden, the Norwegian law also changed public attitudes toward prostitution: “[I]n the Norwegian capital, where prostitution was more visible before the reform, it seems as if the law actually made people more negative toward buying sex.”126 This effect was even more pronounced among young people.127

4. Netherlands

What about countries that have legalized? Scholars have focused particular attention on the Netherlands and Germany, and the evidence for each is deeply troubling. Netherlands legalized prostitution in 2000, and data show a dramatic spike in trafficking victims thereafter.

118 Marinova & James, supra note 19, at 239. 119 Waltman, supra note 19, at 148. 120 Id. 121 Ekberg, supra note 113, at 1202. 122 Cho et al., supra note 1, at 75. 123 Jakobsson & Kotsadam, supra note 23, at 101. 124 Id. 125 Id. 126 Andreas Kotsadam & Niklas Jakobsson, “Do Laws Affect Attitudes? An Assessment of the Norwegian Prostitution Law Using Longitudinal Data,” 31 Int’l Rev. L. & Econ. 103, 109 (2011). 127 Id.

The number of victims in 2008 was 3.6 times that in 1998, and between 2004 and 2008, “the number of victims more than doubled, from 405 in 2004 to 826 in 2008.”128 While theoretically these increases may be due to heightened law enforcement efforts, the growth in trafficking victims outpaces the increase in police investigations.129 The data suggest that legalization in the Netherlands led to a surge in sex trafficking.130

5. Germany

The data on Germany is even worse. After it legalized in 2002, Germany became one of the largest prostitution markets in Europe, with about 150,000 prostitutes and almost 33,000 identified trafficking victims.131 Both figures are about 60 times larger than the relevant figures for Sweden, even though Germany’s population is only about 10 times larger.132 The data also show an increase in identified trafficking victims after legalization.133 As Cho and her colleagues note, this confirms the dominance of the scale effect over the substitution effect. Compositional differences (i.e., the ratios of identified victims to prostitutes) are roughly similar across different legal regimes, but with the expansion of the prostitution market after legalization, sex trafficking also increases.134

C. Other evidence

Beyond the econometric models and case studies, there are additional reasons to believe that legalization allows sex trafficking to flourish.

First, legalization puts a strain on institutional resources as law enforcement redirects its focus from trafficking investigations to monitoring and compliance. In a study of prostitution and trafficking in the Netherlands, Wim Huisman and Edward R. Kleemans point out that neither administrative agencies nor law enforcement have adequate capacity to fight trafficking because of the increased burden of monitoring.135 Dutch municipalities are obligated to gather information on unlicensed sex businesses in their jurisdictions, but they frequently try to shift this responsibility to the police, contending that since the information is useful only for prosecutions, it is a criminal justice not a regulatory matter.136 Meanwhile, police are responsible for

128 Marinova & James, supra note 19, at 243. 129 Id. at 244. 130 See id. 131 Cho et al., supra note 1, at 75. Some estimates put the figure much higher, at 400,000 prostitutes, two- thirds of whom are foreigners, mostly from eastern Europe. See Jason Overdorf, “Germany’s legalized sex industry is booming,” Public Radio Int’l, Nov. 26, 2013, https://www.pri.org/stories/2013-11- 26/germanys-legalized-sex-industry-booming. 132 Id. 133 Id. 134 Id. Marinova and James contend that the spike in trafficking victims in Germany after legalization was “short-lived” and that Germany police later stepped up enforcement efforts, “leading to a gradual decline in trafficking victims.” Marinova & James, supra note 19, at 246. Their data, however, is dated. The U.S. State Department’s most recent TIP Report shows that trafficking investigations convictions in Germany have declined over time even as the number of victims remains relatively steady. Compare id., with U.S. Dep’t of State, supra note 84, at 179. 135 Huisman & Kleemas, supra note 21, at 222. 136 Id. at 221-22.

18 monitoring activities of licensed sex businesses, but this drains their capacity for monitoring the unregulated sector and for investigating cases of sex trafficking.137

These institutional problems, in turn, lead to contempt for the law. “[T]he feeling in the prostitution sector is that licensed businesses are inspected more often than non-licensed businesses.”138 This “undermines the willingness of operators of licensed businesses to adhere to the rules and complicates the efforts to combat human trafficking.”139 As a result, Huisman and Kleemans point out, the prostitution sector in the Netherlands “retains many characteristics of an illegitimate market.”140 Prostitutes still rely on anonymity, secrecy, and cash transfers; most are still controlled by a pimp; most don’t pay taxes; many are drug abusers; and organized crime in the prostitution sector is still a big problem.141

Huisman and Kleemans draw troubling conclusions. First, in the Netherlands, human trafficking is “still thriving behind the legal façade of legalization.”142 Second, lack of institutional capacity leads to a lack of transparency into brothel operations, which hinders monitoring and allows organized crime and trafficking to thrive.143 In sum, they find that legalization has made it more difficult to fight sex trafficking.144

Second, legalization makes trafficking harder to detect. This is particularly true in Europe, where people can travel freely from poorer regions (like Eastern Europe) to wealthier ones (like Germany). German prosecutor Lothar Lehnert made this point in a 2011 speech to the Directorate General of Human Rights and Legal Affairs of the Council of Europe.145 After pointing out that official statistics on trafficking victims in Germany represent “only the tip of the iceberg,” Lehnert noted that legalization had made it “more and more difficult in the last 10 years” to identify trafficking victims.146 Under Germany’s prostitution law, prostitutes may work as “regular employees,” and brothels are registered businesses that “do not need a special brothel license.”147 Compounding these problem, with the Schengen System, prostitutes from Eastern Europe can legally work in Germany, and authorities have no reason to question why they are there or how they got there.148

As a result, there are no “regular checks or raids on brothels.”149 “[T]here is neither a key for the police authorities to get access to the places where prostitution is practiced nor a uniform

137 Id. at 222-23; see also Marinova & James, supra note 19, at 242 (noting that there is “no understanding on the national level of the nature and extent of the trafficking problem in regulated brothels,” and that Dutch police “shelve approximately a quarter of viable cases for criminal investigation due to a shortage of staff, which hampers effective anti-trafficking enforcement”). 138 Huisman & Kleemas, supra note 21, at 222. 139 Id. 140 Id. at 225, 217. 141 See id. at 217, 222, 225. 142 Id. at 217. 143 Id. at 227. 144 See id. at 215, 227. 145 See Lothar Lehnert, Speech: “Problems of prosecuting trafficking in human beings,” Directorate General of Human Rights & Legal Affairs, Council of Europe (Feb. 2011), available at http://www.coe.int/t/dghl/cooperation/economiccrime/trafficking/projects/thb%20azerbaijan/REPORT_LEH NERT.pdf. 146 Id. at 6, 9. 147 Id. at 9. 148 See id. 149 Id.

19 federal regulation concerning places where prostitution is permitted.”150 Couple this with free cross-border movement, and a situation that previously would have aroused police suspicions – foreign women employed as prostitutes in a brothel – is now perfectly legitimate in Germany.151 As Lehnert concludes, it is now “more difficult for the police to recognize possible victims of trafficking.”152

A related problem is obtaining witness testimony. Testimony by female trafficking victims is crucial to getting convictions, but women are often unwilling to testify. Some don’t perceive themselves as victims; others have been threatened by their traffickers or don’t want their families to know they’re working as prostitutes.153 As noted in a 2007 study of Germany’s prostitution law, prior to legalization in Germany, police could often obtain “on-the-spot statements from women during . . . surprise raids.”154 A prosecutor in the report is quoted thus: “We were able to get some really good results like that, which we were able to pursue further and eventually get to the men who are actually behind it all.”155 Legalization changed that, however. The prosecutor goes on to say that, after legalization, “[w]e can no longer work like that; we can no longer search a brothel on suspicion of promotion of prostitution and find witnesses to interview.”156

Finally, public choice theory predicts that the problems of legalization tend to increase over time as sex businesses become an entrenched special interest. Legalization turns wealthy criminals into wealthy “businessmen,” normalizes and de-stigmatizes their “business,” and makes them a legitimate interest group alongside other business groups in the democratic process. Legalization bestows concentrated financial benefits on sex businesses, while the social costs of prostitution – the negative effects on prostitutes’ physical and mental health,157 the prevalence of organized crime,158 and even the social normalization of sexual exploitation – are dispersed across the general population.159

Moreover, unlike with the legalization of nascent industries (such as recreational marijuana, perhaps), the legalization of sex businesses creates a newly legitimized interest group that is already flush with cash.160 Immediately upon gaining legal status, sex businesses are well-positioned to lobby legislatures, make campaign contributions to politicians, and seek a legal regime that allows them to operate with relative impunity, sexually exploiting their “employees” and keeping police, prosecutors, and tax officials at bay. There is some evidence

150 Id. 151 See id. at 9-10. 152 Id. at 9. 153 Id. at 10. 154 Barbara Kavemann, “The Act Regulating the Legal Situation of Prostitutes – implementation, impact, current developments (Sep. 2007), at 27 (quotation omitted), http://www.cahrv.uni- osnabrueck.de/reddot/BroschuereProstGenglisch.pdf. 155 Id. (quotation omitted). 156 Id. (quotation omitted). 157 See Waltman, supra note 19, at 138-42; Huisman & Kleemans, supra note 21, at 217. 158 Huisman & Kleemans, supra note 21, at 218; see also supra notes 73-81 and accompanying text. 159 See Yen, supra note 7, at 683 (“Sexual exploitation of women and girls provides handsome profits for the traffickers and instant sexual gratification for the johns, while the victims are the ones who pay the steep price of sex trafficking with their freedom, their health, and sometimes even their lives.”). See generally Max H. DeLeon, “Public Choice Theory, Interest Groups, and Tort Reform,” 2012 U. Ill. L. Rev. 1787 (2012) (describing collective action and interest group theory). 160 See Yen, supra note 7, at 683 (noting the “the multi-billion dollar profits of the international sex trade industry”); supra notes 48-49 and accompanying text.

20 that sex businesses engage in this effort directly, such as in Germany.161 But their preferred strategy is do this indirectly, by funding nongovernmental organizations (“NGOs”) who then push legalization at the local and international levels.162

V. Taking trafficking seriously

Pacta sunt servanda (“agreements must be kept”) is the international law principle that states must fulfill their treaty obligations in good faith.163 “The principle of good faith fulfillment of obligations requires not only that states implement what has been provided for by a rule imposing an obligation, but also that they refrain from acts that could defeat the object and purpose of such a rule.”164 As we argue below, countries that have legalized prostitution are in violation of their obligations under article 9 of the Palermo Protocol.

A. Why legalization violates Palermo Protocol article 9

The Palermo Protocol imposes several obligations on states-parties with respect to trafficking. Article 9 obligates states-parties to "establish comprehensive policies, programmes and other measures . . . [t]o prevent and combat trafficking in persons.”165 Article 9 specifically requires states to “adopt or strengthen legislative or other measures . . . to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.”166

Article 10 requires law enforcement authorities of states-parties to “cooperate with one another” to determine, among other things, “[t]he means and methods used by organized criminal groups for the purpose of trafficking in persons,... and possible measures for detecting them.”167 It also requires the parties to “provide or strengthen training for law enforcement, immigration and other relevant officials in the prevention of trafficking in persons.”168

The Council of Europe Convention on Action against Trafficking in Human Beings (hereinafter “European Anti-Trafficking Convention”) contains parallel provisions. Article 5(2) requires states-parties to “establish and/or strengthen effective policies and programmes to prevent trafficking in human beings,” and article 6 requires states-parties to “adopt or strengthen legislative, administrative, educational, social, cultural or other measures” in order to

161 See Lehnert, supra note 145, at 9-10; Kavemann, supra note 154, at 27; see also “Unprotected: How Legalizing Prostitution Has Failed,” Part 1, Der Spiegel, May 30, 2013, http://www.spiegel.de/international/germany/human-trafficking-persists-despite-legality-of-prostitution-in- germany-a-902533.html (stating that, after Germany’s prostitution law passed, “[t]hen Family Minister Christine Bergmann (SPD) was seen raising a glass of champagne with Kerstin Müller, Green Party parliamentary floor leader at the time, next to Berlin brothel operator Felicitas Weigmann”). 162 See Dodge & Gilbert, supra note 26, at 354-61 (detailing the extensive funding that U.S.-based NGOs receive from the sex industry). 163 U.N. Conference on the Law of Treaties, Vienna Convention on the Law of Treaties, art. 1, U.N. Doc. A/CONF. 39/27 (Jan. 27, 1980) [hereinafter Vienna Convention]; see Restatement (Third) of Foreign Relations Law of U.S. § 321 (“Every international agreement in force is binding upon the parties to it and must be performed by them in good faith.”). 164 I.I. Lukashuk, “The Principle Pacta Sunt Servanda and the Nature of Obligation Under International Law,” 83 Am. J. Int’l L. 513, 515 (1989). 165 Palermo Protocol art. 9(1)(a). 166 Id. art. 9(5). 167 Id. art. 10(1)(c). 168 Id. art 10(2).

“discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.”169

There are currently 170 states-parties to the Palermo Protocol.170 These include the United States, Australia, and the European countries discussed above: Denmark, Germany, the Netherlands, Norway, and Sweden.171 These five European countries (among others) are also parties to the European Convention on Human Rights172 and the European Anti-Trafficking Convention.173

Each of these countries is obligated to fulfill its treaty obligations in good faith. With respect to the article 9 of the Palermo Protocol in particular, this means two things. First, states- parties must implement comprehensive policies and programs to prevent trafficking and discourage demand.174 Second, they must refrain from policies that tend to foster trafficking and encourage demand.175

Legalization of prostitution, however, does precisely that. As the foregoing discussion makes clear, the growing body of evidence – econometric analyses, case studies, and other evidence – shows that legalization expands the commercial sex market, stimulates demand, and allows trafficking to flourish.176 Legalization works at cross-purposes with the obligation to fight trafficking, and it specifically undermines a nation’s promises under Palermo Protocol. In light of the link between legalization and trafficking, a state cannot legalize prostitution and fulfill its treaty obligations in good faith. In short, the legalization of prostitution is a violation of article 9 of the Palermo Protocol.

As far as we are aware, this is a new argument.177 Yet it flows logically from the pacta sunt servanda principle when the empirical evidence – the actual evidence of the effects of legalization – is taken into account.

B. States’ “positive obligations” to combat trafficking under Rantsev

This argument also finds support in a landmark decision of the European Court of Human Rights in 2010, Rantsev v. Cyprus and Russia.178 The case concerned a young Russian adult woman, Oxana Rantseva, who went to work in a cabaret in Cyprus on an “artiste” visa in

169 Euro. Anti-Trafficking Convention arts. 5(2), 6. 170 See United Nations Treaty Collection, supra note 43. 171 See id. 172 See Council of Europe, “Chart of signatures and ratifications of Treaty 005” (status as of Jan. 24, 2017), http://www.coe.int/en/web/conventions/search-on-treaties/- /conventions/treaty/005/signatures?p_auth=CVy0XzRX. 173 See Council of Europe, “Chart of signatures and ratifications of Treaty 197” (status as of Jan. 24, 2017), https://www.coe.int/en/web/conventions/full-list/- /conventions/treaty/197/signatures?p_auth=CVy0XzRX. 174 Palermo Protocol, art. 9(1)(a), (5). 175 See id.; Lukashik, supra note 164, at 515. 176 See supra Part IV. 177 Waltman hinted briefly at such an argument in 2011: “In light of the evidence presented above, and considering that prostitution generally ‘does satisfy the elements of trafficking’ and that the legalization of third-party profiteering and the purchase of sex promotes the demand for both domestic and cross jurisdictional trafficking, jurisdictions where third parties and sex purchasers may act legally – such as Denmark, Germany, the Netherlands, New Zealand, Nevada, and Victoria, Australia – arguably violate international law.” Waltman, supra note 19, at 157. 178 2010-1 Eur. Ct. H.R. 65, available at http://www.echr.coe.int.

2001.179 She was later found dead.180 Oxana’s father, Nikolay Rantsev, sued the states of Cyprus and Russia, claiming the authorities in both countries violated article 4 of the European Convention on Human Rights (“ECHR”) by failing to protect Oxana from being trafficked and failing to investigate the circumstances of her arrival in Cyprus and the nature of her employment.181

The situation of cabaret “artistes” in Cyprus was well-known: since the mid-1970s, thousands of young women, most from eastern Europe and central Asia, “had legally entered Cyprus to work as artistes but had in fact worked as prostitutes in one of the many cabarets” on the island.182 Indeed, the artiste visa regime was a form of state-sanctioned prostitution. “[T]he word ‘artiste’ in Cyprus ha[d] become synonymous with ‘prostitute,’”183 and Cypriot authorities were “aware that many of the women who enter Cyprus on these artistes visas will in fact work in prostitution.”184 Government and international reports had criticized the Cypriot government for failing to tackle this trafficking problem.185

After identifying pertinent provisions of both Cypriot and Russian law on human trafficking,186 the European Court of Human Rights discussed relevant international treaties, including the Palermo Protocol and the European Anti-Trafficking Convention.187 In a watershed ruling, the Court held that ECHR article 4, when interpreted in light of these international treaty obligations, imposed three “positive obligations” on states-parties: (1) to put in a place a comprehensive legal framework to combat trafficking, (2) to take measures to protect trafficking victims, and (3) to investigate instances of suspected trafficking.188

The Court’s reasoning is important because it teases out the connection between ECHR article 4 and Palermo Protocol article 9. First, the Court concluded that ECHR article 4’s ban on “slavery” and “servitude” covers human trafficking because the ECHR “must be interpreted in the light of present-day conditions,” and both “the Palermo Protocol in 2000 and the Anti-

179 Id. ¶ 14. 180 Id. ¶ 24. 181 See id. ¶ 252. Oxana’s visa had been obtained for her by the owner of the cabaret where she worked. Id. ¶ 14. One night, she disappeared, and the cabaret manager filed a police report, asking that Oxana be arrested and deported “so that he could bring another girl to work in the cabaret.” Id. ¶ 16. But for reasons unknown, Oxana’s name was not entered into a police list of “wanted persons.” Id. When Oxana surfaced several days later, the cabaret manager brought her to the police, but the police refused to detain her and told the manager that “if he did not take her,” they would allow her to leave. Id. ¶ 19. The manager did take her, and she was found dead the next morning. Id. ¶ 24. 182 Id. ¶ 82-83. 183 Id. 184 Id. ¶ 95 (quotation omitted). And the problem has not gone away. See Caroline Nelly Perrot, “‘Brothel’ cabarets thrive in breakaway Cyprus statelet,” Yahoo! News, Aug. 22, 2015, https://www.yahoo.com/news/brothel-cabarets-thrive-breakaway-cyprus-statelet-053739742.html?ref=gs. 185 See 2010-1 Eur. Ct. H.R. 65, ¶ 93 (report criticizing government failures and noting that “the number of young women migrating to Cyprus as nightclub artistes is well out of proportion to the population of the island”); id. ¶ 98 (report urging government “to be especially vigilant about monitoring the situation and ensuring that the system of artiste visas is not used for facilitating trafficking or forced prostitution,” and urging measures “to identify victims and refer them to specialised agencies which can offer shelter and protection, as well as support services”). 186 Id. ¶¶ 107-135. 187 Id. ¶¶ 136-173. 188 Id. ¶¶ 284-287; see also Roza Pati, “States' Positive Obligations with Respect to Human Trafficking: The European Court of Human Rights Breaks New Ground in Rantsev v. Cyprus and Russia,” 29 B.U. Int’l L.J. 79, 131 (2011).

Trafficking Convention in 2005 demonstrate the increasing recognition at international level of the prevalence of trafficking and the need for measures to combat it.”189

Second, the Court noted that the Palermo Protocol and the European Anti-Trafficking Convention set forth “a comprehensive approach to combat trafficking which includes measures to prevent trafficking and to protect victims, in addition to measures to punish traffickers.”190 ECHR article 4, therefore, had to be interpreted “within this broader context.”191

In light of these conclusions, the Court then elaborated on the three positive obligations imposed by ECHR article 4, and evaluated Cyprus’s and Russia’s adherence to them. We focus on Cyprus in particular.

First, regarding a country’s overall legal framework for combating trafficking, the Court said that ECHR article 4 requires states parties not only to adopt criminal measures against trafficking, but also “to put in place adequate measures regulating businesses often used as a cover for human trafficking.”192 And regarding Cyprus, the Court specifically criticized its artiste visa regime. The government knew that this regime brought “thousands of young foreign women into Cyprus, where they were exploited by their employers under cruel living and working conditions.”193 And since the regime made it difficult for law enforcement to take steps to combat trafficking, the regime “could be perceived as contradicting the measures taken against trafficking or at least as rendering them ineffective.”194

Here, the parallel to the regimes of legalized prostitution in Germany and the Netherlands is striking. In both countries, legalization has exacerbated the trafficking problem, prostitution and trafficking often happen in the same establishments and neighborhoods, and legalization has prevented regulatory and law enforcement authorities from taking adequate steps to address the problem.195

Second, regarding the requirements that a country protect victims and investigate instances of suspected trafficking, the Court noted that Cypriot authorities were well aware that foreign women “were being trafficked to Cyprus on artistes visas and, upon arrival, were being sexually exploited by cabaret owners and managers.”196 The Court pointed to article 10 of the Palermo Protocol, which required Cyprus to ensure that law enforcement had adequate training to identify potential trafficking victims. “In the Court's opinion, there were sufficient indicators available to the police authorities, against the general backdrop of trafficking issues in Cyprus, for them to have been aware of circumstances giving rise to a credible suspicion that Ms. Rantseva was, or was at real and immediate risk of being, a victim of trafficking or exploitation.”197 Cypriot police had a duty to conduct an “effective investigation,” but they failed to do so.198

189 2010-1 Eur. Ct. H.R. 65, ¶¶ 276-277. 190 Id. ¶ 284. 191 See id. 192 Id. ¶ 283. 193 Id. ¶ 290. 194 Id. 195 See supra Part IV.B.4, IV.B.5, IV.C. 196 Id. ¶ 293. 197 Id. ¶ 295. 198 Id. ¶ 299.

Applying this reasoning more broadly requires attention to the specific facts and circumstances of a particular country and particular victims. But Germany again provides striking similarities. The majority of prostitutes in Germany are eastern European women,199 and law enforcement candidly acknowledges that the situation for many of them “suggests they are the victims of human trafficking, but it is difficult to provide proof that would hold up in court.”200 Legalization has hampered the ability to German police to get access to sex business and adequately investigate suspected human trafficking cases.201

The Netherlands has this problem, too. Dutch national authorities have “no understanding . . . of the nature and extent of the trafficking problem in regulated brothels,” and Dutch police regularly shelve suspected trafficking cases because they are understaffed.202 Under the Court’s decision in Rantsev, the legal and administrative problems created by legalization in both Germany and the Netherlands likely violate those countries’ obligations under the Palermo Protocol and ECHR article 4.

These conclusions are generalizable beyond Europe. ECHR article 4 – the specific basis for the Court’s decision in Rantsev – is modeled on article 4 of the Universal Declaration of Human Rights, which likewise bans “slavery or servitude.”203 This prohibition, like the rest of the declaration, has acquired the status of customary international law, which means it is binding on all states.204 And countries around the world, including the United States and Australia (both of which tolerate legalized prostitution to a limited extent within their borders), are parties to the Palermo Protocol. The Rantsev decision suggests that all such parties have “positive obligations” to adopt a comprehensive approach to fighting human trafficking, to protect victims, and to investigate suspected instances of trafficking. The legalization of prostitution is inconsistent with each of these obligations.

C. Implications of a Palermo Protocol violation

What does it mean if legalization violates article 9 of the Palermo Protocol? What are the legal and international implications of such a conclusion? We highlight two here: international dispute resolution and treatment under the TVPA of countries that have legalized.

1. International dispute resolution

Article 15 of the Palermo Protocol pertains to dispute resolution between states-parties. First, disputes concerning “the interpretation or application” of the protocol should be resolved

199 See Overdorf supra note 131. 200 “Unprotected,” supra note 51 (quoting a report by Germany’s Federal Criminal Police Office (BKA)) (internal quotation marks omitted). 201 See supra notes 146-152 and accompanying text. 202 Marinova & James, supra note 19, at 242. 203 Universal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, 3d Sess., U.N. Doc. A/810 (1948). 204 Office of the High Comm'r of Human Rights, Digital Record of the UDHR, United Nations Human Rights (Feb. 2009), http://www.ohchr.org/EN/NEWSEVENTS/Pages/DigitalrecordoftheUDHR.aspx; see Hurst Hannum, “The Status of the Universal Declaration of Human Rights in National and International Law,” 25 Ga. J. Int'l & Comp. L. 287, 287 (1996) (“The Universal Declaration of Human Rights has been the foundation of much of the post-1945 codification of human rights.” (footnote omitted)). See generally Samuel Estreicher, “Rethinking the Binding Effect of Customary International Law,” 44 Va. J. Int'l L. 5, 8 (2003).

25 through negotiation if possible.205 Second, if the dispute is not resolved, the parties should submit it to arbitration.206 If the parties cannot agree on how the arbitration should be conducted, they may refer the dispute to the International Court of Justice (“ICJ”).207 The protocol allows states-parties to opt out of the arbitration and ICJ mechanisms for dispute resolution,208 and several have done so, including the United States.209 This is consistent with the U.S. position on ICJ jurisdiction for over three decades: in 1985, the United States removed itself from the ICJ’s compulsory jurisdiction, but accepts the court’s jurisdiction on a voluntary, case-by-case basis.210 None of the western European countries opted out of the dispute resolution provisions of article 15.211

A dispute over the status of legalization under the Palermo Protocol might arise if one state claimed that its nationals were being trafficked to another state due to the latter state’s legal prostitution market. Romania or Bulgaria, for example, might assert such an argument against Germany and seek a declaration that Germany’s legal regime violates international law.

Under the Palermo Protocol and the statute of the ICJ, only states can bring claims predicated on interpretation or application of the protocol.212 However, an individual can bring claims under the European Convention on Human Rights if he or she is a “victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention.”213 This is, of course, how Mr. Rantsev was able to challenge Cyprus’s artiste visa regime. Thus, under the ECHR, a trafficking victim in a country where prostitution is legal (or the relative of such a victim) could challenge that country’s legal regime in the European Court of Human Rights, arguing that the regime violates international law. The European Court of Human Rights also has jurisdiction over interstate disputes.214

2. Treatment under the TVPA of countries who have legalized

The provisions and standards set in the TVPA are quite clear. TRAFFICKING VICTIMS PROTECTION ACT: MINIMUM STANDARDS FOR THE ELIMINATION OF TRAFFICKING IN PERSONS

(1) The government of the country should prohibit severe forms of trafficking persons and punish acts of such trafficking. (2) For the knowing of any act of sex trafficking involving force, fraud, coercion, or in which the victim of sex trafficking is a child incapable of giving meaningful consent, or of

205 Palermo Protocol, art. 15(1). 206 Id. art. 15(2) 207 Id. art. 15(3). 208 Id. art. 15(3). 209 See United Nations Treaty Collection, supra note 43. 210 See U.S. Dep’t of State, Letter and Statement concerning Termination of Acceptance of I.C.J. Compulsory Jurisdiction, 24 I.L.M. 1742 (1985); Curtis A. Bradley & Jean Galbraith, “Presidential War Powers As an Interactive Dynamic: International Law, Domestic Law, and Practice-Based Legal Change,” 91 N.Y.U. L. Rev. 689, 704 & n.51 (2016). 211 See United Nations Treaty Collection, supra note 43. 212 See Palermo Protocol art. 15; Statute of the Int’l Ct. of Justice art. 35(1). 213 Euro. Convention on Human Rights, art. 34. 214 Id. art. 33.

26 trafficking, which includes rape or kidnapping, or which causes a death, the government of the country should prescribe punishment commensurate with that for grave crimes, such a forcible sexual assault. (3) For the knowing commission of any act or a severe form of trafficking in persons, the government of the country should prescribe punishment that is sufficiently stringent to deter and adequately reflects the heinous nature of the offense. (4) The government of the country should make serious and sustained efforts to eliminate severe forms of trafficking in persons.215

INDICIA OF SERIOUS AND SUSTAINED EFFORT

Some of the “indicia” that is looked at is troubling for nations that have legalized prostitution. (8) Whether the percentage of victims of severe forms of trafficking in the country that are non-citizens of such countries is insignificant (11) Whether the government of the country achieves appreciable progress in eliminating severe forms of trafficking when compared to the assessment in the previous year. (12) Whether the government of the country has made serious and sustained efforts to reduce the demand for: a. Commercial sex acts b. Participation of international sex tourism by nationals of the country216

Each year the Department of State publishes a Trafficking in Persons Report. This is a massive report of over 400 pages that analyzes over 190 nations and how their governments prosecute, protect, and prevent human trafficking. It covers both forced labor trafficking as well as sex trafficking. A Tier 1 designation is the best rating a nation can receive. But there is a disconnect in the rating system similar to the one we discussed with the Palermo Protocol. Once again, in the 2016 report, Germany and Australia were given Tier 1 ratings, despite the fact that they have legalized prostitution, which has increased trafficking in their nations. A look at their narratives in the reports also highlight that each fails to prosecute traffickers, protect victims, and prevent sex trafficking.

In the narrative on Australia, it states that enforcement of sex trafficking is almost non- existent. In 2014, they initiated only one prosecution for sex trafficking, and for the second straight year, the government failed to get any trafficking convictions under the criminal code.217 It further states, Australia is primarily a destination country for women and girls subjected to sex trafficking … a small number of children, primarily teenage Australian and foreign girls, are subjected to sex trafficking within the country. Some women from Asia – and to a lesser extent Eastern Europe and Africa – migrate to Australia to work legally or illegally in a number of sectors, including the sex trade. After their arrival, some of these women are coerced to enter or remain in prostitution. Some foreign women, and sometimes girls – are held in captivity, subjected to physical and sexual violence and intimidation, manipulated through illegal drugs, obliged to pay off unexpected or inflated debts to traffickers, or otherwise deceived working arrangements.218

215 U.S. Dept of State, Trafficking in Persons Report 2016, at 48 216 Id at 49 217 U.S. Dept of State, Trafficking in Persons Report 2016 at 83 218 Id at 49

Where most of the trafficked women and children came from the Philippians in the 1990s, the nations that are victimized now include Japan, Thailand, China, South Korea, Eastern Europe, Russia, and Africa. 219 In the area of prevention, the government did not take significant steps to reduce demand for commercial sex acts. 220

Legalization in New South Wales, Victoria, Western Australia and Queensland has been very problematic. There has been a boom in brothels and street prostitution, public disturbances, more organized crime, and a greater exploitation of women and children. There has also been a direct link between prostitution and drug-addiction. 221

Federal police officer Chris Payne has seen the evidence that hundreds of illegally imported Asian women are exploited in New South Wales’ legal brothels every day. In Sydney, there are as many as 500 Asian women on fake papers working at brothels. 222 And yet the report states; “The government of Australia fully meets the minimum standards for the elimination of trafficking.” 223

Germany has once again received Tier 1 status. The report states what is, at best, wishful thinking, “the government maintains strong effort to prosecute and convict sex traffickers.” 224 2014 is the last year for which comprehensive statistics are available. The courts prosecuted 105 individuals and achieved 79 convictions. Most received lenient prison sentences that were suspended. Of the 79 convictions, only 19 were sentenced to short-term prison sentences. 225 The report highlights these statistics and comments that convicted traffickers frequently avoid imprisonment, thereby “creating potential safety problems for trafficking victims, weakening deterrence, and undercutting law-enforcement efforts of police and prosecutors.”226 The final paragraph says it all -- “The government did not make efforts to reduce demand for commercial sex.”227 How does a country make “serious and sustained efforts to reduce the demand for commercial sex acts”228 when it has legalized prostitution?

Five years after the legalization of prostitution in Germany, a study by the German Federal Ministry concluded that there were no measurable improvements for prostitutes in social protection or in their working conditions. There was also no evidence of reduced crime or improved transparency in the industry.229 The same report found that 92% of women working as prostitutes and interviewed for the survey had suffered sexual harassment, 87% physical violence, and 59% sexual violence. Of the sample, around half of the prostitutes showed symptoms of depression, a quarter had contemplated suicide, 41% had taken drugs in the last year, and 43% had been sexually abused in their childhood.230

219 U.S. Dept of State, Trafficking in Persons Report 2016, at 83 220 Id at 82 221 “Making Sex Work: A Failed Experiment with Legalized Prostitution” Mary Lucille Sullivan, at 214 222 The Law Report, ABC Radio National 14 November 2000 223 U.S. Dept of State, Trafficking in Persons Report 2016 at 80 224 Id at 178 225 Id at 179 226 Id at 179 227 Id at 180 228 Id at 49 229 BMFSFJ (2007), Report by the Federal Government on the Impact of the Act Regulating the Legal Situation of Prostitutes, at 79. [http://www.cahrv.uni- osnabrueck.de/reddot/BroschuereProstGenglisch.pdf, cited page should be 14] 230 BMFSFJ (2007), Health, Well-Being and Personal Safety of Women in Germany, http://www.cahrv.uni- osnabrueck.de/conference/SummaryGermanVAWstudy.pdf.

To show the magnitude of how the culture has changed, the total revenue of the sex market has continued to grow, with over 3500 registered brothels. This does not include the unregistered brothels.231 There are a number of mega-brothels that can service 1000 buyers per day.232 Flat rate brothels have been developed that allow sex with an unlimited number of women each day. Sex tourism has become rampant and Germany has become the bordello of Europe and the western world. The “Pussy Club” had over 1700 men in line for its grand opening. The lines outside the rooms continued all night until closing, until some of the women collapsed from exhaustion, with various injuries and infections.233 In April of 2016, Artemis, one of Germany’s largest brothels was raided by over 700 police on charges of social security fraud and human trafficking.234

The Netherlands also received Tier 1 status. In our prior discussion in section IV on prostitution and the link to trafficking, it is abundantly clear that legalization in the Netherlands has allowed sex trafficking to flourish. Yet, once again the narrative talks all around the issue without addressing reality. “The Netherlands is a source, destination, and transit country for men, women, and children from the Netherlands, Eastern Europe, Africa, South and East Asia subjected to sex trafficking and forced labor… Vulnerable populations include Dutch girls enticed by young male traffickers (“loverboys”, who establish sham love relationships with vulnerable girls before intimidating them into sexual exploitation), children seeking asylum and women dependent on residency status obtained through fraudulent or forced marriages…”235

One of the consistencies in the narratives on Germany and Australia is how the report virtually ignores the fact that prostitution has been legalized in each country. The narrative on the Netherlands follows the same approach. The only places that allude to the legalized status of prostitution is one sentence that mentions the occasional inspection of brothels and one dealing with anti-trafficking police officers taking a course on policing the sex industry. There is the almost cryptic use of the word “regulated”, deep in the discussion of the islands of Bonaire, St. Eustatius and Saba, which are municipalities of the Netherlands. “Women in prostitution in regulated and illegal commercial sex sectors and unaccompanied children are highly vulnerable to trafficking.”236

So what explains the State Department’s willingness to give nations that have legalized prostitution, which increases trafficking, Tier 1 status? There are only two possibilities, and neither are encouraging. The first is that the Department is unaware of the role legalized prostitution has on increasing demand, and ultimately, the spike in trafficking that occurs. This is hard to believe considering that during the last few years, the fact that sex trafficking has increased in these nations is evident and supported by empirical studies. Considering the size and the resources required each year for the TIP Report, it calls into question the methodology used, as well as its academic rigor. The next possibility that is even more disturbing, is that due to political considerations, western nations and allies of the United States are entitled to Tier 1 status, regardless of the facts on the ground.

231 Dr. Ingeborg Kraus, “German Model is Producing Hell on Earth” speech given in Vancouver Canada on Sept. 20, 2016, for the “International Approaches to Prostitution” 232 Id. 233 Id. 234 International Business Times, “German Police Raid Berlin’s mega-brothel Artemis Believed to be involved in Human Trafficking”, Mark Piggott on April 14, 2016 235 U.S. Dept of State, Trafficking in Persons Report 2016, at 283 236 Id. at 284

VI. Conclusion

Human sex trafficking has existed for millennia, and is a gross violation of basic human rights. The relentless march of globalization, increasing profitability, and ineffective law enforcement have only accelerated the growth of this plague in recent decades. As we have demonstrated, sex trafficking disproportionately affects women and children. It transcends cultures and devastates lives in poor and wealthy nations alike.

The signing of the Palermo Protocol by 170 nations in the year 2000 effectively marked the start of a new era in which the international community acknowledged that a unified effort was required to combat sex trafficking. At a minimum, it has proven effective in highlighting the problem, bringing greater public attention and resources to the fight. Thanks to Palermo, the international expectation has become that nations will take substantive action to fight sex trafficking and its root causes. As with many international agreements, however, enforcement and creating real change have proven difficult. Even so, the 2010 case Rantsev v. Cyprus and Russia, argued before the European Court of Human Rights, provides one striking legal precedent to holding nations accountable for failures to prevent the conditions that lead to trafficking.

The passing of the TVPA by the United States in 2000 was another important step. The State Department’s annual TIP report card and three-tiered grading system has had the commendable effect of clearly communicating that America is committed to the eradication of sex trafficking throughout the world. It has also pressed those nations that fall short of attaining Tier 1 status to begin making the necessary changes.

Governments around the world have taken various approaches in their efforts to eradicate sex trafficking. Many nations, including the United States, criminalize all aspects of prostitution. While data suggests this course may slow the growth of trafficking, it commits the unfortunate error of bestowing criminal status upon victims of the industry. On the other side of the spectrum are the nations which have fully legalized prostitution. In these countries— Germany, the Netherlands, and Australia—legalization has corresponded with an undeniable surge in trafficking and sex tourism.

Sweden, recognizing that demand drives growth, made impressive strides in its fight against sex trafficking by pioneering a third way. By criminalizing buyers and third parties to prostitution, while protecting prostitutes and providing them social services and exit programs, Sweden has witnessed a substantial decrease in both prostitution and trafficking. Equally impressive is how the law has changed public attitudes. Today, the general consensus in Sweden is that prostitutes are victims of male violence and male sex purchasers should be criminalized. The Nordic model, as it has come to be known, has gained rapid support throughout the EU and beyond. Nations adopting this policy set have reported similarly encouraging results.

Our research leads us to believe that the United States is well positioned to continue to provide international leadership in the global fight against human sex trafficking. As a starting point, we recommend the speedy implementation of the following courses of action:

1. The United States should recognize the progress that Sweden has achieved. Accordingly, the government should explore and endorse the enactment of the Nordic model at both federal and state levels.

2. In light of the overwhelming evidence linking legalized prostitution to increases in sex trafficking, the State Department should downgrade Germany, the Netherlands, and Australia to Tier 2 status in the 2017 TIP Report due to their legalization of prostitution and the resulting increase in sex trafficking. The report should also discuss how Nevada, by legalizing prostitution in 10 rural counties, is not living up to the standards of the TVPA.

3. The United States should petition for action at the UN promoting an explicit declaration that nations which have legalized prostitution stand in violation of the Palermo Protocol.

These actions would undoubtedly cause a political tidal wave, both domestically and within the international community. Nevertheless, a tidal wave may be exactly what is needed to stop the growth of the global scourge of sex trafficking. The consensus of multiple studies and data collected over the past decades have made it impossible to deny that legalized prostitution and the rise of human sex trafficking are indeed “Inextricably Bound.” As Vednita Carter, a survivor and founder of Breaking Free says, “Prostitution is not the world’s oldest profession. It is the world’s oldest oppression.”237

237 Anita Casalina, “Stopping the World’s Oldest Oppression,” Huffington Post, Mar. 10, 2015, http://www.huffingtonpost.com/anita-casalina/stopping-the-worlds-oldes_b_6835952.html.

Dan O’Bryant is an attorney and a 2015-16 Fellow at the Weatherhead Center for International Affairs at Harvard University. For the Fall Term 2016, he returned as an associate at WCFIA, to continue his research and speaking on various issues of sexual exploitation. He serves on the Board of Directors (chairman 2013-16) of Shared Hope International, an NGO that seeks to eradicate sex trafficking, particularly of minors. Dan holds a JD from Drake University Law School. He was a Judge Advocate General (JAG) in the United States Air Force, serving as a prosecutor then later as an Area Defense Counsel. He was also a Law Professor at the US Air Force Academy. O’Bryant lives in Colorado Springs with his wife of 40 years, Donna. They have 3 children, and 8 grandchildren.

Ian Speir is an associate attorney with Lewis Roca Rothgerber Christie LLP in Colorado Springs, Colorado. His practice focuses on church-state issues, religious freedom, and human rights. He is a regular contributor to Providence Magazine, and co-authored the "Genocide Against Christians in the Middle East" report submitted to Secretary John Kerry in March 2016. Ian holds a J.D. from the Georgetown University Law Center. The views expressed here are his own.

Dan would also like to offer his special thanks to Dr. Kathleen Molony for her friendship and mentorship during my time at the Weatherhead Center. After a very busy life, this chapter offered a time of introspection and the chance to ask questions and learn. Also, thanks to research assistant Diana Sheedy (Harvard Class of 2017) for her help and passion on this issue.