Article Asian and Pacific Migration Journal 2015, Vol. 24(3) 327–352 Curbing sex ! Scalabrini Migration Center 2015 Reprints and permissions: sagepub.co.uk/ trafficking in : journalsPermissions.nav DOI: 10.1177/0117196815595326 The policy–practice apmj.sagepub.com divide

Emel Co¸skun Du¨ zce University

Abstract Based on field research, this study examines to what extent Turkey’s current policy on sex trafficking adheres to the UN Protocol in practice and discusses how and migration regimes inform and affect the policies and practices against sex trafficking in Turkey. For this study, data were collected using semi-structured interviews with 23 key informants, each representing different perspectives on sex trafficking in Turkey. The study found that the prostitution and migration regimes of Turkey render migrant women susceptible to gender violence, and weaken the identification and protection systems that may result in the ‘re-victimization’ of ‘victims’ of sex trafficking.

Keywords Turkey, sex trafficking, prostitution regime, migration

Introduction The trafficking of women for sexual exploitation, also known as sex traf- ficking, is not a new issue. Concerns about trafficking activities became an issue on the international agenda for the first time in the late 19th century. It re-emerged in most parts of the world in the 1980s and has since become a part of the political agenda of the United Nations (UN) and many indi- vidual countries. Various dimensions of sex trafficking had been studied,

Corresponding author: Emel Co¸skun, Sociology Department, Du¨ zce University, Konuralp Yerleskesi Merkez/Du¨ zce 81620, Turkey. Email: [email protected] 328 Asian and Pacific Migration Journal 24(3) including its connection to migration and prostitution (Agustin, 2007; Dewey, 2008; Doezema, 2000; Jeffreys, 2009; Kelly and Regan, 2000; Kempadoo et al., 2005; Miriam, 2005;Outshoorn, 2005), human rights (Anderson, 2013; Dauvergne, 2008), labor (Anderson and Rogaly, 2005; O’Connell Davidson, 2010), and international and national anti-trafficking discourses (Anderson, 2013; Doezema, 2002; Gallagher, 2001; Lobasz, 2009). Yet, there is limited knowledge about how anti-trafficking efforts are practiced (i.e., Atauz et al., 2009; Dewey 2008). Based on policy- oriented empirical research, this paper examined Turkey’s policy and practices in the fight against sex trafficking. The main question for this research was: How do Turkey’s prostitution and migration regimes affect the identification and protection mechanisms of victims of sex trafficking and migrant women in general? By pursuing this question, this paper explored the interactions between sex trafficking, prostitution and migra- tion regimes in order to identify the strengths and weaknesses of the national referral and protection mechanisms, and how these regimes affect trafficked women and migrant women in Turkey. Since the early 1990s and the break-up of the former Soviet Union (see Erder and Ka¸ska, 2003), Turkey came to be known as a destination and transit country for sex trafficking. Turkey was unprepared for the sudden rise in the influx of migrants, including those who had been traf- ficked. In the absence of preventative measures against trafficking, Turkey was severely criticized in the late 1990s and early 2000s for its ill treatment of potential ‘victims’ of sex trafficking who were considered as ‘illegal’ migrant prostitutes and were deported (United States Department of State, 2004: 183). The growing concerns and international anti-trafficking conventions and discourses compelled Turkey to sign the UN Palermo Protocol to ‘Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children’ on 13 December 2000 and to ratify it on 13 March 2003 (United Nations, 2015). With the guidance of the International Organization for Migration (IOM), it started to build its own anti-trafficking policy. In 2004–2005 a national referral and protection system was established to identify and support trafficked women. However, Turkey continued to be criticized even after creating this new system. For example, Ayata et al. (2009: 42) argued that efforts are mainly focused upon legal and administrative regulations, and that the new policy changes had been motivated to gain prestige in the international community. Yenidu¨ nya et al. (2009) also documented how human traf- ficking cases were mixed up with the forced and resulted in no or lower punishment for sex traffickers. In fact, when the law, Article 80 (Law No. 5237), was enacted on 26 September 2004, it did not include a specific reference to the most common type of Co¸skun 329 trafficking in women, which is for sexual exploitation (Tu¨ rk Ceza Kanunu, 2014a). Before Article 80 was amended in 2006, there was no reference to pros- titution in human trafficking legislation. Sex trafficking cases were dealt with through the law (Article 227), which also referred to facilitation of border crossing for the purpose of prostitution and the instigation, facilitation, hosting and pimping activities related to prostitu- tion (Countertrafficking.org, 2014). However, due to severe criticism, the reference to border crossing was removed from Article 227 in 2006. At the same time, ‘prostitution’ was added to the definition of human trafficking. As a result of these amendments, sex trafficking has come to be considered an international crime while internal trafficking relies on the forced pros- titution provision in Article 227. Despite the amendment in 2006, Yenidu¨ nya et al. (2009: 258) pointed out that the confusion between human trafficking, forced prostitution, and human smuggling1 among law enforcement bureaus remains. More recent research also shows the difficulties of identifying victims of trafficking in accordance with the changing nature of traffickers’ methods (see Sever et al., 2012: 62). Therefore, it is believed that there are trafficked women among the migrant women deported for working ‘illegally’ as prostitutes, for having sexually transmitted diseases (STDs) or for visa violations (see Demir, 2008; Travis, 2008). Official statistics on the number of deport- ations for ‘illegally’ selling sex or for having STDs seem to support these criticisms. The data also indicate that the deportations are substantial since 2002 (see Table 1). Thus, although the Turkish government has included sex trafficking in the definition of human trafficking and there are efforts to identify victims of sex trafficking among migrant women since 2006, identification efforts do not appear to have reduced the number of deportations. Erder and Ka¸ska (2003: 16) documented that the number of deport- ations from Turkey for the period between 1995 and June 2002 totaled more than 355,000; almost half of these deportations were to countries that are known as source countries of irregular migration, such as , , , , the Russian Federation and . IOM’s 2008 country report on Turkey also showed that there were about 30,000 people forcibly removed from Turkey to these origin countries

1Smuggling is defined as the facilitation of ‘illegal’ border crossing of migrants and usually involves a financial gain for the agent. It involves ‘consenting to be transported’ and therefore it is different from trafficking, as trafficking does not require border crossing. Human smug- gling is defined by the Ministry of Foreign Affairs (MFA) as follows: ‘to assist for profit purposes, persons who do not possess a permanent residence in Turkey, to enter and reside illegally and Turkish nationals to exit the country illegally’ (Ministry of Foreign Affairs, 2012). 330 Asian and Pacific Migration Journal 24(3)

Table 1. Number of women deported for sexually transmitted diseases (STDs), ‘illegal’ prostitution’ and ‘identified victims of trafficking.’a

‘Trafficking victims’ Deported for identified by ‘Trafficking victims’ Deported for ‘illegal’ Turkish law assisted by having STDs prostitution enforcement IOMb

2000 1,377 3,529 N/A N/A 2001 1,253 3,504 N/A N/A 2002 718 2,559 N/A N/A 2003 377 1,775 N/A N/A 2004 454 1,990 236 62 2005 630 2,113 256 220 2006 646 2,209 246 191 2007 N/A N/A 148 118 2008 N/A N/A 120 78 2009 N/A 2,134 102 75 2010 N/A 1,600 58 26 2011 N/A N/A 82 35 2012 N/A N/A 39 18 2013 N/A N/A 21 3

Source: Data on the number of deportations between 2000 and 2006 are quoted from Demir’s study (2008: 63); the number of deportations for 2009 and 2010 are special data from the Ministry of Internal Affairs; data on the number of identified victims between 2004 and 2013 are from Countertrafficking.org (2015). aThere were seven identified male victims of trafficking between 2004 and 2012 (see counter- trafficking.org, 2015). bThose assisted by IOM refer to victims of trafficking who had been identified by the Turkish authorities.

(IOM, 2008). The average number of women who were deported for being ‘illegal’ prostitutes or for having STDs was about 2,500 annually between 2002 and 2006 (see Table 1). The recent statistics obtained from the General Directorate of Security show that 2,134 women in 2009 and 1,600 women in 2010 who came from the former Soviet countries were deported for ‘illegally’ selling sex while the number of deportations for having STDs is unknown.2 During the same period, 2009–2010, approximately 130 women (3.3 percent of total prostitution-related arrests) were

2It was difficult to have access to these figures, especially the number of deportations. They are not published annually if there is no specific request from the Ministry of Internal Affairs. Co¸skun 331 identified as ‘victims of sex trafficking.’ In Istanbul alone, the number was 600 for the first six months of 2011. These statistics suggest that although the number of ‘identified victims’ by law enforcers has sharply decreased since 2007, the number of deportations for ‘illegal’ prostitution and STDs has not changed drastically. As mentioned earlier, this paper examined the effects of Turkey’s migration and prostitution regimes on the national identification and pro- tection mechanisms for sex trafficking. These effects are especially visible in the identification of ‘victims’ when attempting to distinguish between forced and voluntary prostitution. This paper argues that sex trafficking cannot be distinguished within the existing prostitution and migration regimes. Turkey’s migration regime pushes migrant women to work in informal jobs and bad working conditions, making them vulnerable to exploitation while the prostitution regime, with its strong stigma against migrant women, also makes these women susceptible to gender violence and pushes them into prostitution and/or into the hands of pimps/traf- fickers. These regimes negatively affect the identification and protection mechanisms because they criminalize women initially, creating difficulties during the identification process and subsequently affecting the number of identified ‘victims’ of sex trafficking. The scope of this research is purposely limited to policy and practices on sex trafficking with the aim of exploring a specific relationship between prostitution regimes and the most documented3 type of trafficking in human beings, sex trafficking. In-depth interviews using semi-structured interview guides were conducted. The interviewees were selected from particular institutions or held positions directly related to human traffick- ing. Altogether, the research participants represent different perspectives on sex trafficking. A snowball or chain sampling method was used in selecting interviewees. The 23 key informants comprised policy-makers and advisors, including: high-ranking Turkish government officials from the Ministry of Foreign Affairs and General Directorate of Security (n ¼ 3); managers; project workers and professionals from the IOM and non-gov- ernment organizations or NGOs (n ¼ 12); law enforcement officers (police officers from the Immigration Removal Center in Istanbul, n ¼ 3); lawyers (n ¼ 3); and a doctor and a psychologist. The research was conducted between March 2010 and June 2011 in both Istanbul and . The study has been updated regularly when dictated by developments and new laws.

3Reports and research show that human trafficking for sexual exploitation or sex trafficking is about the only type of human trafficking in Turkey (see Atauz et al. 2009: 420; Yenidu¨ nya et al., 2009). 332 Asian and Pacific Migration Journal 24(3)

In regards to language, the term victim has been chosen because it describes the situation of those who had been trafficked and also to under- score the ‘fragile’ and ‘vulnerable’ position attributed to women who have been trafficked. The term undocumented is used to refer specifically to the common situation of migrants who might have no rights of entry, resi- dence, or work permit. Finally, in the light of discussions among feminists on ‘forced’ and ‘voluntary’ involvement in prostitution, this paper prefers to use the terms prostitution and prostitute instead of sex work and sex workers as a result of the current author’s abolitionist position regard- ing policy (Hirata et al., 2009: 182–183; Outshoorn, 2004: 9), and to reflect that position in sex trafficking debates. This paper supports the argument that human trafficking for sexual exploitation (and other forms of sexual exploitation) cannot be explained by the ‘forced labor’ approach to pros- titution (see Bindman, 1998; Doezema, 2000; Goodey, 2008; Kempadoo et al., 2005). This approach does not only disconnect trafficking from pros- titution as a separate crime, but also neutralizes the gendered aspect of sex trafficking and ignores male demand (Outshoorn, 2005: 147). Also, this paper uses the phrase prostitution regime in reference to the definition used by Kelly et al. (2009) and Outshoorn (2004: 6), which includes a set of policies and practices. The concept of migration regime is used in a similar context with reference to F. Williams (2010).

Overview of the migration regime in Turkey Turkey has been known as a country of emigration due to its participation in mainstream labor migration to Western Europe until the mid-1970s (Abadan-Unat, 2002). However, since the early 1990s, Turkey has also been increasingly recognized as an immigration and transit country for irregular migrants (Ic¸duygu and Kiri¸sc¸i, 2009: 2; Pac¸acı Elitok and Straubhaar, 2012). Since Europe stopped labor migration after the economic recession in 1973–1974, migration to Europe has become much more difficult as border control became stricter (Atasu¨ -Topc¸uog˘lu, 2012: 5120). Higher travel costs and restrictive migration policies made Turkey more attractive to potential migrants and tourists given its more relaxed visa regime, proximity and lower travel costs (Ayata et al., 2008; Erder and Ka¸ska, 2003; Tokso¨z and U¨ nlu¨ tu¨ rk-Uluta¸s, 2012). Since the early 1990s, aside from undocumented and/or transit migrants and asylum seekers,4 a significant number of people from former Soviet countries

4According to a statement from the Ministry of Foreign Affairs (2010), more than 700,000 undocumented migrants were caught and detained between 1995 and 2007. Most recently the United Nations High Commissioner for Refugees (UNHCR) announced that there were 613,000 Syrian refugees in Turkey at the beginning of 2014 (UNHCR, 2014). Co¸skun 333

(predominantly from Russia, the Ukraine and Moldova) have come to Turkey as shuttle traders or as workers in agriculture and construction and as domestic workers (Erder and Ka¸ska, 2003; IOM, 2008: 33). However, the most important characteristics of these flows have been their circular and gendered nature where women make up the majority as traders or workers (Erder and Ka¸ska, 2003: 13; Tokso¨z and U¨ nlu¨ tu¨ rk- Uluta¸s, 2012). As a result of expanding trade, some districts in several cities have gradually become entertainment centers which attracted many women from the former Soviet countries. Due to Turkey’s bureau- cratic and restrictive employment processes for migrants, many migrant women landed informal jobs because it was difficult for them to get work in the formal labor market. Many migrant women were employed as domestic workers. As in other counties, migrant women take over the care and reproductive work from middle-class women who are working outside the home (see Ehrenreich and Hochschild, 2002; Kofman et al., 2000). Although there is a general decrease in women’s participation in the labor force in Turkey (Ecevit et al., 2008), Tokso¨z and U¨ nlu¨ tu¨ rk-Uluta¸s argued that the women’s share in professional occupations (around 37 percent at the beginning of the 2000s)5 have created a ready demand for domestic migrant workers (2012: 91). The gendered aspects of the informal labor market are also shaped by the demand for cheap labor as well as restrictive migration rules. The process of hiring a migrant worker requires the employer to apply to the Ministry of Labor and Social Security (MoLSS). Long waiting periods (maximum of 90 days) and work permit fees (approximately 60 euros depending on the period) discourage both employers and migrants from going through the legal process and incline them to work with the proper permits; Keough (2008) and Tokso¨z and U¨ nlu¨ tu¨ rk-Uluta¸s (2012) point out that migrants’ vulnerability to exploitation results from their ‘illegal’ status, which allows employers to keep them more obedient. For example, as a result of restrictive laws on work permits for migrants, most people from the former Soviet region enter Turkey with 1–3-month long tourist visas, after which they remain in the country. Migrants with an expired visa must pay a fine at the border when they exit the country. The visa regime inclines most migrant women to work in the informal sector to save money or to continue with their job. When they overstay, they become ‘illegal’ and more vulnerable to exploitation. During this period

5Women’s participation in the labor force has decreased from 30.2 percent in 1988 to 26.2 percent in 2006 (Ecevit et al., 2008: 123–124). However, among employed women, the percentage with university and vocational college degrees has increased from 37.6 percent in 2000 to 41 percent in 2006 in the urban areas of Turkey (Ecevit et al., 2008: 133). 334 Asian and Pacific Migration Journal 24(3) of ‘illegality’ they try not to deal with the police out of fear of deportation, thus limiting their mobility. The unprotected working conditions of migrant women have also been advanced as pushing trafficked women to prostitution. Ege (2002), Kalfa (2008), and Tokso¨z and U¨ nlu¨ tu¨ rk-Uluta¸s (2012) argue that there is a link between domestic work and trafficking, and that migrant women in domestic work are not only vulnerable to serious human rights violations but are also susceptible to gender violence and sex trafficking. According to Anderson (2013), many migrants cannot defend their rights against employers, and they are exposed to exploitation due to restrictive migra- tion laws and unequal social relations created by these laws. Their vul- nerability, combined with the strong stigma against them as ‘illegal prostitutes’ (see Atauz et al., 2009), push them into prostitution (Kalfa, 2008). For a better understanding of the identification process of traffick- ing and trafficked women’s position in Turkey, it is also important to understand how the prostitution regime of Turkey affects migrant women.

Turkey’s prostitution regime and migrant women With the establishment of the Turkish Republic in 1923, the new govern- ment attempted to have more control over prostitution and to limit it to certain places and .6 When prostitution was prohibited by the government between 1930 and 1933, the aim was to raise healthy ‘Turkish’ generations and to promote family and moral values rather than to defend the rights of women involved in prostitution (Toprak, 1993–1995: 342). However, the prohibitive approach to prostitution was abandoned in 1933 when the national and local authorities had difficulties in controlling irregular prostitution. While restrictions were eased for local women in prostitution, ‘foreign’ women were prohibited from working as prostitutes and were deported since the establishment of the Turkish Republic in 1923 (Toprak, 1993–1995: 342). In the current prostitution regime in Turkey, genel kadın (‘general woman’) refers to women who work in brothels with a legal license (vesika). A genel kadın can only work under the control of the government and state-owned brothels and are obliged to carry a vesika instead of the usual identification card. In addition, they must visit special hospitals twice a week to check for STDs (Ministry of Justice, 1961). Therefore, unlicensed prostitution is not allowed and is considered an ‘infamous crime,’ i.e., it is regarded as shameful but not punishable. Although

6Prostitution was generally tolerated under the Ottoman Empire; however, it was regulated in the second half of the 19th century when the first was opened in Istanbul (Toprak, 1993–1995: 342). Co¸skun 335 there is no penalty for women who are accused of ‘illegally’ selling sex, law enforcement agencies have the right to force women to have medical examination for STDs. Also, law enforcement agencies can force native women who have been repeatedly arrested for unlicensed prostitution to work in the ‘closed brothel’ system (Ministry of Justice, 1961). Turkey’s prostitution law and policy focuses on regulating prostitution for the bene- fit of public health and on protecting national moral values rather than protecting the human rights of women who are involved in prostitution. In fact, the law does not aim to improve women’s position in society; it does not say anything about an exit strategy. On the other hand, men who pay for sex outside of the brothel system are usually free to go after regu- lar ID checks and without any penalty or being subjected to medical exam- ination for STDs. Government efforts to regulate prostitution aim not only to prevent or to hide prostitution in public places, but also to keep brothels for ‘men’s sexual needs.’ In spite of its invisibility, prostitution is deeply embedded in the society and has become more accessible to men in the last decades (Ayata et al., 2008). Several factors have been advanced about the demand side. Ayata et al. (2008: 59) point to a biological reductionist approach wherein the sexual needs of men are naturalized and seen as a necessity in Turkey’s gender regime. Brothels are also seen as necessary institutions for men, especially for new grooms to have their ‘first’ sexual experience before marriage (Ayata et al., 2008: 59). While the pre-marital sexual relation- ships of men are accepted, they are taboo for women. It is a dishonorable act for a woman to become sexually involved with a man before and outside marriage (Erginsoy, 2000). A recent study shows that the mean age of first sexual intercourse for women in Ankara brothels was 16.3 years, of whom 34.6 had their first sexual intercourse before the age of 15 and 60.1 percent had their first intercourse unwillingly (Balseven- Odaba¸sı et al., 2012: 154). One of the findings of this research was that physical and sexual abuse in childhood is a risk factor to becoming involved in prostitution, as are poor economic conditions and low educa- tional background. Balseven-Odaba¸sı et al. (2012: 156) note that social stigma and discrimination against women who had sexual intercourse before marriage, with or without consent, ‘cause hopelessness in these women and make them feel that they have no other choice except sex work.’ C¸ okar and Yılmaz-Kayar’s research suggests that prostitution is a last resort for most women who sell sex: ‘they do whatever they could do against difficulties; however their own circumstances limit their choice’ (2011: 36). Once they enter prostitution, prostitutes are excluded from society on moral grounds and considered as threatening to honorable family life. Women in prostitution cannot escape discrimination and 336 Asian and Pacific Migration Journal 24(3)

‘consent’ or ‘non-consent’ is irrelevant (see Balseven-Odaba¸sı et al., 2012; Erginsoy, 2000). The treatment of rape cases involving prostitutes is very telling. In November 1990, Turkish Criminal Law increased the punish- ment for rape cases involving prostitutes (previously, the punishment for such cases was about one-third less than other rape cases). Despite this change, even today, the court’s decision can still be affected if a woman is a prostitute or selling sex (Yazıcı, 2011). Under Turkey’s prostitution regime, a prostitute or a woman (or a child under 18 years old) suspected to be a prostitute will find it difficult to obtain a just decision. One example is a famous lawsuit about a 13-year-old girl who was sold to 26 men. The case resulted in a lesser punishment than a rape case because of her alleged ‘consent’ (NTV, 2011). Therefore, in view of how the prostitution regime works in Turkey, the distinction between forced and voluntary prostitution may not be meaningful. Tolerance of male sexuality in society and the lack of punishment for ‘customers’ who buy irregular sexual services are considered the most important socio-cultural factors for the growing ‘sex business’ in Turkey (Ayata et al., 2008; C¸ okar and Yılmaz-Kayar, 2011). Strict controls over legal prostitution and ‘sexual’ services (Ayata et al., 2008), as well as the police’s lack of control over ‘irregular’ prostitution have also been identi- fied as strong drivers of unlicensed prostitution7 (Gu¨ lc¸u¨ r and Ilkkaracan, 2002: 419). Also, the demand for migrant women, especially after the breakup of the Soviet Union, has increased and led to the diversification of the commercial sex industry in Turkey. According to C¸ okar and Yılmaz-Kayar (2011: 51), ‘foreign’ women are preferred because of fewer restrictions on the services that they provide (e.g., not using ), in contrast to the regulated services in state-run brothels. Migrant prostitutes usually work for pimps. While pimps provide them ‘protection’ from police arrests or customer abuse, the ‘illegal’ status of migrant prostitutes render them susceptible to being controlled by pimps. Several studies show the popular perception of migrant women as ‘voluntary’ prostitutes (Ayata et al., 2009; Atauz et al., 2009; Erder and Ka¸ska, 2003; Gu¨ lc¸u¨ r and Ilkkaracan, 2002; O¨ zgen, 2006). This stigmatiza- tion of ‘foreign women’ even leads to some women ending up in prostitution (Kalfa, 2008). Local women who sell sex are discriminated against; in the case of migrant women in prostitution, this discrimination is much more severe. A study by Atauz et al. (2009) points out that

7Although it is not possible to reach accurate numbers of persons who are involved in prostitution in Turkey, C¸ okar and Yılmaz-Kayar’s research suggests that there are 30,000 prostitutes in Istanbul alone, 5,000 of whom are transgenders. It is also estimated that there are 8,000–10,000 prostitutes in each of the major cities (2011: 35). Based on this, there could be around 150,000 women and transgender prostitutes in Turkey; these numbers do not include migrant women. Co¸skun 337 prostitution and human (sex) trafficking are classified under the entertain- ment sector and migrant women in this sector are looked down upon by the local population: ‘They stigmatized foreign female sex workers and were not able to distinguish between sex workers and trafficked persons’ (Atauz et al., 2009: 432). Interestingly, the police and the locals view most women as voluntarily getting involved in prostitution and men are seen as ‘innocent’ (Atauz et al., 2009: 432); the combined prejudice towards migrant women and the patriarchal discourse on women in prostitution ‘‘seem to foster a lack of regard for the victimization of trafficked women’’ (Atauz et al., 2009: 433). Such racist and nationalistic discourse and its resulting prejudice and discrimination against migrant women also came up in O¨ zgen’s study (2006: 12). Migrant or ‘foreign’ women who are involved in prostitution are con- sidered as criminal offenders for committing the crime of prostitution. The Law (No. 5682) forbids ‘foreign’ women to work in prostitution. According to the law, violators will be deported, especially those who have STDs (The Passport Law, 1950). A migrant woman arrested on sus- picion of prostitution undergoes the same procedures used for local women, including the compulsory medical examination. However, migrant women are not kept in hospitals to be treated and they cannot be forced to register as prostitutes. Instead, they are deported for working ‘illegally’ as prostitutes and/or for having STDs; sometimes they may be identified as victims of sex trafficking. In reality, the line between forced and voluntary prostitution is blurred. This point comes up again in the identification process of ‘victims’ of sex trafficking.

‘Victim’ identification The Palermo Protocol served as a template for Turkey’s definition of human trafficking. Although the national law includes most acts listed in the Protocol, there are also significant departures in the Turkish defin- ition and its translation into practice. A comparison of the national legis- lation’s definitions of trafficking and prostitution and the UN Protocol’s definition is outlined below:

Human trafficking in Turkey/Article 80

Those who recruit, abduct, transport or transfer or harbor persons for the purpose of subjecting to forced labor or service, prostitution, enslavement or for removal of body organs, by getting their consent by means of threat, oppression, coercion or using violence, of abusing influence, of deceit or of abusing their control over or the vulnerabilities of these persons shall be 338 Asian and Pacific Migration Journal 24(3)

sentenced to imprisonment up to eight to twelve years and a fine corres- ponding to 10,000 days (Tu¨ rk Ceza Kanunu, 2014a).

Palermo Protocol/Article 3

‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of pay- ments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation (United Nations, 2000).

The reference to ‘giving or receiving of payments or benefits to achieve the consent’ in the Palermo Protocol is where the Turkish legislation dif- fers from the Protocol. Consent to engage in prostitution is an important criterion in the ‘victim’ identification process in Turkey. Although Article 80 does not refer to the consent issue directly, in Turkey’s prostitution regime, the identification process reflects how the consent issue influences practice. This criterion reflects Turkey’s prostitution regime in which a woman who sells sex is considered as consenting to it. The definition of forced prostitution is not clear in Article 227:

Prostitution/Article 227

One who instigates someone into prostitution, facilitates the way of, or mediates for it or guarantees the place where prostitution is practiced will be imprisoned from two years to four years and fined up to three thousand days equivalent Turkish liras. Benefiting partly or entirely from the gain of those who act as a prostitute is regarded as instigating prostitution (Tu¨ rk Ceza Kanunu, 2014b).

As indicated in the definition above, Article 227 aims to punish pimps instead of distinguishing between forced and voluntary prostitution. The distinction between prostitution and human trafficking and between forced and voluntary prostitution is indicated in IOM Turkey’s counter trafficking website:

The victims of human trafficking – girls, women, men and boys – are enslaved often under threat of death, and without their consent, they are forced to provide sex to men for payment. The payment goes directly to the owners, and the victim receives nothing. Traffickers often convince women to go abroad and work as prostitutes, seemingly of their own free will, but Co¸skun 339

then enslave and brutalize them. In contrast, prostitution is when a woman sells her body as a commodity and pockets the profits. Prostitutes are not slaves and are not controlled by the traffickers (Countertrafficking.org, 2014).

This definition not only points to the importance of receiving money by referring to ‘pocketing the profits,’ but also shows that ‘going abroad’ is an important criterion to distinguish trafficking from forced prostitution. Interestingly, when the human trafficking Article 80 was designed in 2004, it did not include a specific reference to sexual exploitation, the most documented type of human trafficking. Article 227 was used for both the forced prostitution and sex trafficking of migrants, as mentioned previously. As a result, most trafficked women (for sexual exploitation) were not identified as ‘victims of trafficking.’ Rather, most migrant women who were accused of being ‘illegal’ prostitutes were deported for violating prostitution and migration laws, no matter if they were forced into pros- titution. When this was criticized in the Trafficking in Persons Report in 2004 (United States Department of State, 2004: 183), forced prostitution was included in Article 80. A reference to border crossing was also removed from Article 227 in late 2006. These amendments sought to dis- tinguish forced prostitution/pimping cases from sex trafficking cases. Although these two articles (80 and 227) supposedly serve different aims, after the amendment in 2006, the only difference between them on paper is a reference to transportation in Article 80. This criterion is referred to by IOM Informant 1 as ‘engagement in the countries of origin,’ which can also include recruitment:

For the crime of human trafficking to be determined, the criteria of bringing people from abroad for the purpose of prostitution with or without force must be met, according to Article 80. Because of this criterion, most local women and migrant women who are internally trafficked either are not identified or are referred to the ‘forced prostitution’ Article 227, which results in lighter punishments (Interview, Lawyer 1).

In summary, the two important criteria in identifying a ‘victim’ of sex trafficking in Turkey—forcible transportation or engagement in the coun- tries of origin and not receiving any payment (or benefits) as a proof of ‘consent’—are problematic. The transportation criterion narrows the def- inition of trafficking; the bigger problem is the ‘consent’ issue in the pros- titution regime. In the next section, the identification mechanisms will be explored to understand how the criteria translate into practice, and how the prostitution and migration regimes affect trafficked women in Turkey. 340 Asian and Pacific Migration Journal 24(3)

Victim identification: ‘Do you have a complaint?’ In Turkey, the identification of a ‘victim’ of sex trafficking usually starts with police raids. Data from the interviews suggest that, although women can seek assistance from embassies or report directly to police stations, potential ‘victims’ of trafficking are mostly ‘caught’ by Vice Squad police units during their random searches of entertainment places. The primary aim of these raids is to catch ‘illegal prostitutes’ to protect public health and to uphold national moral values, rather than to rescue the ‘victims’ of sex trafficking. When women are caught in a police raid, they are taken for compulsory medical examination for STDs and kept in the police station until the results are released. This examination is applied to all women who are accused of selling sex without permits (vesika), thus, they are treated initially as suspects rather than ‘victims.’ A doctor informant (NGO informant 1) said that the aim of this ‘ethically problematic’ exam- ination is to prevent any diseases that ‘prostitute’ women may bring to society. In fact, the procedure is not just ‘ethically problematic’ but also against women’s human rights as it requires vaginal/gynecological exam- inations by force, which was criticized as ‘instrumental rape’ even in the late 19th century (Bindel and Kelly, 2003: 4). In addition to violating the human rights of women, compulsory testing is not the correct practice for victim identification; instead, there should be a ‘screening interview’ to understand whether or not a woman has been trafficked (Interview, IOM Informant 2). An NGO from Antalya can be involved in the ‘victim’ iden- tification process to a certain degree, but for the most part, law enforce- ment officers (mainly the police) are the only ones with the right to identify ‘victims.’ In general, NGO and IOM workers have a limited role in the identification process (e.g., assistance with translation). After the results of the compulsory tests are received, the identification process supposedly begins with a police interview, or what seems to be a police interrogation, in a police station. Although the Palermo Protocol recommends giving a one-month reflection period8 to potential ‘victims’ of trafficking, the current study’s interviews reveal that a ‘victim’ of traf- ficking should be identified within a twenty-four-hour time limit.

8There is a new law on foreigners and international protection for some migrant groups, including trafficked persons, which was enforced in May 2014. Although it is too early to evaluate the law, the most important change seems to be that Article 48 offers humanitarian residence permits for one month to potential victims of human trafficking: ‘(1) A residence permit valid for thirty days shall be granted, by the governorates, to foreigners who are victims of human trafficking or where there is strong circumstantial evidence that they might be victims with a view to allow them to break from the impact of their [negative] experience and reflect on whether to cooperate with the competent authorities’ (Ministry of Interior Directorate General of Migration Management, 2014: 22). Co¸skun 341

According to the Turkish Criminal Law (Ceza Muhakemesi Kanunu, 2015), if a person is detained for any reason he/she must be referred to prosecutors within twenty-four hours with an explanation of the crime. Although ‘victims’ of sex trafficking are not criminals, the time limit is also applied to them because the police have to decide if they have committed a crime (i.e., ‘illegal prostitution’) or not. Furthermore, if a woman does not complain or say anything about being trafficked within 24 hours, she can be deported because of STDs, or for other reasons such as committing the crime of ‘illegal’ prostitution or for visa violations. An informant explains:

There are serious problems. For example health-screening reports come and let’s say she has an illness, then there is automatic deportation. Or in case of visa violation ...automatic deportation. Instead of doing the screening inter- view before all these things ... They are eliminated by health screening, by visa problems, etc. So we already lose some of them (Interview, IOM Informant 2).

Therefore her ‘illegal’ status takes priority and she can be deported easily if she does not complain about being trafficked. A translator and project worker (IOM Informant 1) explained that it is difficult to extract a complaint from the victim: ‘No woman, Turkish or foreigner, would talk within 24 hours especially if she had trauma, she would not say anything to the police.’ In fact, far from being treated as a victim, from the very beginning, the women are treated as potential suspects of ‘illegal’ prosti- tution who were ‘caught’ in police raids. These circumstances are not helpful in identifying potentially trafficked women. As many participants in this research confirmed, the police (as well as public employees) tend to see migrant women as ‘illegal’ prostitutes rather than as ‘trafficked victims.’ For example, in October 2009, there was a large police raid in Antalya, a tourist city in the south of Turkey, where a large tourist yacht with about 150 women on it was searched. In the opinion of a psychologist/counselor (NGO Informant 2), those women were likely traf- ficked for sexual exploitation but none of them were formally identified as ‘victims:’

Lacking in training, they could not identify even a single victim out of 150 women from the Savarona yacht raid. [Normally] officers from the offices on foreigners should identify the victims [but] it was just the police who did the [victim] identification. They didn’t want to victimize the victims, they clas- sified the women as voluntary workers and deported them. They would rather punish the traffickers. From their point of view, they are doing a 342 Asian and Pacific Migration Journal 24(3)

favor to the women by treating them as ‘illegal’ prostitutes (Interview, Policy-maker 1).9

This interviewee also unintentionally pointed out the difficulties of victim identification. Expecting a ‘fair’ or gender-sensitive identification by the police departments on this case may be ‘naive’ at best, not only because the police’s primary duty is to fight against ‘illegal’ prostitution, but also given the police’s limited knowledge about trafficking, they cannot be expected to identify the element of force. Another problem arises during the ‘interviews.’ In translating the law and the Palermo Protocol, ‘victims’ are expected to complain about being a ‘victim,’ to cooperate with the police and to give information about their traffickers immediately when they are arrested. A high-ranking officer explained this process:

She must accept that she was persecuted, harassed, used and forced to work. ... If a victim says that she is a victim, she has to cooperate according to international protocols. If she cooperates, our police friends will interview her instead of interrogating her. If it is an interview, the police will ask questions similar to interviews to determine whether a person is a refugee: how she was deceived, who were her contacts, what happened until then, etc. (Interview, Police Officer 1).

One informant (IOM Informant 2) commented on the inappropriate identification process: ‘The police have created something like ‘‘Do you have a complaint?’’... Why are you asking this question? It does not matter whether she complains or not.’ It is also worth noting that, except for some translation, NGOs are not sought for legal or professional help when the identification is conducted in the police stations. Furthermore, migrant women can be detained in the same place as the traffickers/pimps. As an informant explained:

When the gendarmerie detain the women, they keep them in the same place [with the traffickers]. If the gendarmerie recognize the mistake, they separate them, if not they stay together. And in the prosecution stage some things happen and we lose the women. They are threatened. Now, both the police and the gendarmerie intervene much better but there is still a possibility that

9The women will be repatriated sooner or later (even when they have been identified as trafficking victims), thus, the police may think that women will save time by skipping the lengthy identification process. If identified as ‘illegal’ prostitutes, the women will be deported immediately. Also, the victim identification process means more work for the police. Co¸skun 343

the women can have contact with many people during the prosecution period (Interview, NGO Informant 2).

During the prosecution stage, some of the women cancelled their com- plaint because of being kept next to their traffickers and exposed to their threats. Identified victims should be kept in a separate place from traf- fickers; otherwise, proximity with the traffickers will affect the victims’ decision and ultimately, the identification process (Interview, IOM Informant 3). To recap, during the identification period, a victim stays in the police station or gendarmerie unit where she was ‘caught.’ She is expected to file a ‘complaint’ for having been ‘trafficked’ and accuse her traffickers in order to get ‘victim status’ and to have access to the protection system. Although other evidence is collected—through raids or pre-raid investi- gation, including wire-tapping in advance of police raids—the victim’s statement is very important in the identification process. The victim’s statement, however, is not sufficient; the complaint should contain some elements of force. She has to prove that she was deceived, forced and transported from one place to another. According to the key informants, not receiving any payment and being engaged in the countries of origin are crucial. Based on these criteria, most local women and women who are internally trafficked either are not identified as ‘victims’ or they fall under Article 227, which results in light punish- ments or no punishment at all. The importance of establishing force during the identification process is illustrated by the Supreme Court’s decision reasoning on appeals for a specific case of human trafficking. The court cited the victim’s several visits to Turkey and to her married sister in another city as indications that the victim had freedom of move- ment (see Supreme Court of Appeal No: 8; 2010/1440 E., 2010/5953 K.). According to the court, she was not a ‘victim’ because she was neither deceived nor desperate; instead of going to her sister, she stayed in Istanbul and started selling sex; when she had a conflict with her pimp (the accused), she left and moved into a hotel (Supreme Court of Appeal No: 8; 2010/1440 E., 2010/5953 K). Therefore, the court decided that the criminal provisions for human trafficking were not met (Supreme Court of Appeal No: 8; 2010/1440 E., 2010/5953 K). Having established ‘consent,’ the court did not define her as a victim of trafficking (see Supreme Court of Appeal No: 8; 2007/1862 E.N, 2008/ 5276 K.N.). Contrary to the Supreme Court’s decision, this study’s findings show that women may initially cross the border voluntarily with a valid visa or they may consent to be smuggled. Women can be trafficked at any stage 344 Asian and Pacific Migration Journal 24(3) during their stay in Turkey, or they can be trafficked into prostitution even if they knew that they were going to sell sex in Turkey. The current criteria of forcible transportation and receiving money are not valid as most women enter the country ‘voluntarily’ with a valid passport and/or they might receive small amounts of money from recruiters as a result of so-called ‘business contracts’ or ‘indebtedness.’ These difficulties are explained by an informant below:

I had an interview with a victim who was staying in a shelter. She talked openly about her experience. She said ‘I came here willingly. I knew I was going to work in prostitution. The guy was very good to me, I was not locked up, and he gave me pocket money. He earned 15,000 dollars and gave me 1,500 dollars per month.’ She was thankful to him. I was confused as to how this woman could be a victim... She works for four months; she buys a house for 4,000 dollars, because houses are very cheap there, and the trafficker earns 15,000 dollars. But, she is praying for him. Now, the police decided that she was a victim, I was confused. I asked for her statement. There, she says ‘I did not know that I was going to work in prostitution. The guy made me work by force. I did not want to do this job.’ The story she told me was the opposite of her statement. I asked for help from our headquar- ters and we discussed the situation. In this case, the trafficker took advan- tage of her vulnerability, but the woman also had payment and worked willingly. Nonetheless, we also decided that she was a victim (Interview, IOM Informant 1).

The same informant also pointed out that sometimes a woman may not be identified as a ‘victim’ if she met the police a few times where she was working, and if she did not report a complaint at the first meeting. In addition, as mentioned above, some informants from IOM and the NGOs also noted that the police’s criterion of ‘being forced’ pushes a woman to lie and fit into a ‘victim’ stereotype if she wants to get help or attention. This victim stereotype requires being recruited in a country outside Turkey, and moving from one place to another, usually from one country to another. Therefore, a ‘victim’ is unlikely to be a citizen of Turkey. Also, she should not receive any money because receiving pay- ment is considered as proof of ‘consent’ and works against those who receive payment, even small sums, from traffickers. In fact, a woman should not be involved in prostitution at all before being trafficked. However, interviews with police officers and key informants show that in the last few years, these criteria do not occur in most sex trafficking cases. Instead, non-violent methods such as deception, debt bondage, psy- chological pressure or threats, and usually making payment within Co¸skun 345

Table 2. National referral system for sex trafficking in Turkey.

Step 1. Police conducts regular raids targeting ‘illegal prostitution’ Step 2. Police takes migrant women into custody for ‘illegal prostitution’ Step 3. Migrant women undergo compulsory medical examination for sexually transmitted diseases (STDs) Step 4. a. If STD screening is positive, the next step is possible deportation b. If STD screening is negative, the migrant woman is released or deported in case of visa violations Step 5. Identification stage: review of the migrant woman’s complaint to determine whether she is a trafficked victim; further proof may be required Step 6. Support is extended to trafficking victims who have been identified: International Organization for Migration’s shelter-based support and repatri- ation of identified victims by the Ministry of the Interior.

contract-like relations are described as common methods used by traf- fickers. In fact, referring to non-violent and contract-like relations, a police officer even says ‘as women do not realize the situation, it may not be seen by the police.’ If a woman argues that she voluntarily engaged in prostitution but she could not get the payment that was promised to her, or was forced to work, she is less likely to be identified as a victim. Therefore, the stereotyping of a ‘victim’ by the police has become ‘fictional’ in current forms of sex trafficking. The different steps before and after the victim identification process are outlined in Table 2. In summary, compulsory health checks, narrowly defined criteria for victim identification, police interviews, the 24-hour time limit, the strong prejudice among police officers, the poor physical conditions of the police stations, and the lack of legal assistance and professional help from NGOs during identification all add to the barriers to the proper identification of trafficked women. In addition, if a woman does not complain or say anything about being trafficked, she can be deported because of STDs, ‘illegal’ prostitution or visa violation. Even if she has filed a complaint, the ‘victim’ has to provide evidence. Considering these difficulties, the identification process is daunting and discourages many women from coming forward. It is possible that there are trafficked women among those who were deported and those who were accused of being ‘illegal’ prostitutes. Therefore, the story of sex trafficking pre- sented by official statistics and reports needs to be challenged. The entire national referral and identification system might serve not only to keep women silent and therefore ‘unidentified,’ but also criminalizes and ‘re- victimizes’ them. 346 Asian and Pacific Migration Journal 24(3)

What happens to the ‘victims’? Although the issue of protection deserves another paper, it must be noted here that the women who have been officially identified as a ‘victim’ of human trafficking are also sent back to their countries sooner or later. The Palermo Protocol recommends the repatriation of trafficked persons to the state party: (1) ‘without undue or unreasonable delay;’ and (2) ‘shall preferably be voluntary’ (United Nations, 2000: 45). Although the Protocol also refers to protection, compensation and staying in the destination country to participate in the legal process, the extent of the recommended protection measures are subject to domestic laws and ‘appropriate cases’ (United Nations, 2000: 45). Dauvergne (2008: 73) noted that these rights may also be extended to other rights, such as freedom of movement and the right to earn a living. However, victims of human trafficking are rarely able to access most of the rights provided by the Protocol. According to Turkey’s National Referral System, an identified ‘victim of human trafficking’ is presented with two options: to participate in IOM’s Assisted Voluntary Return Program (AVR) with access to a shelter; or to stay outside of it and be sent back to the origin country. At some point, identified ‘victims’ of sex trafficking must return to their home country, as there is no other option offered to them except a temporary resident permit on humanitarian grounds. In practice, very few had been given this resident permit. An ‘identified victim’ of sex trafficking could avail of the following support: shelter-based accommodation for a few weeks; a free health check (especially for STDs); food; clothes; some counseling and legal assistance, if any; and a free return ticket. Owing to their short stay in the shelters, trafficked women could not be provided with more in-depth psychological counseling. Key informants regarded the IOM’s interven- tion as providing limited support to victims; in fact, they considered the IOM program as a tool to prevent migration. As mentioned earlier, in principle, trafficked victims could apply for a humanitarian visa or a work permit, but in fact, there are no real efforts to offer options for longer stay or assistance in obtaining visas/work permits. There is also no possibility to obtain compensation for identified ‘victims.’ Almost one-third of identified ‘victims’ (435 out of 1,227) between 2004 and 2011 chose to return to their home countries without IOM’s assistance. In 2013, 19 women out of 21 victims refused IOM assistance. There are several reasons why many women do not participate in the AVR pro- gram: compulsory return; short term stay in semi-prison type shelters; exclusion from the judiciary process; lack of compensation mechanism; and stigmatization through ‘victim’ status. There are some cases of Co¸skun 347 trafficked women who returned to Turkey after some time and are re-trafficked into prostitution (Interview, IOM Informant 2). This con- tinuous ‘victimization’ or re-trafficking derives from poor support, inad- equate legislation, lack of protection and lack of other viable options in Turkey.

Conclusion It can be concluded that the elements of Turkey’s national referral and protection mechanisms for ‘victims’ may serve also as a tool to ’re- victimize’ women. In fact, Turkey’s definition of human trafficking is rather narrow, as it focuses on international trafficking with reference to transportation or ‘engagement in the countries of origin,’ thereby excluding local women and trafficking within borders. It also enforces a distinction between forced and voluntary (trafficking/prostitution) as part of the victim identification process. Without doubt, Turkey’s prostitution regime creates a tension between two practices: prostitution and sex traf- ficking. Turkey’s prostitution regime not only harms some fundamental rights of licensed prostitutes, such as ‘freedom of movement,’ but also harms any measures against sex trafficking by criminalizing all women who are involved in prostitution, whether ‘voluntarily’ or not. As the line between forced and voluntary prostitution is blurred by the prostitution regime of Turkey, there cannot be a meaningful distinction between forced and voluntary involvement in prostitution. Therefore, instead of crimina- lizing and stigmatizing women in prostitution, it is important to see how Turkey’s prostitution regime makes women, migrant or local, susceptible to gender violence. This is especially apparent when it combines with restrictive migration law and views prostitution as a last resort for women in general. It is also important to look at the demand side of prostitution and its relation to sex trafficking. These regimes should include measures to stop male violence against women in prostitution and to extend support to these women. The role of the state in building and shaping the labor market as well as the sex industry cannot be ignored. Therefore, the roots of sex trafficking can be seen both in the migration and prostitution regimes of Turkey: the pros- titution regime stigmatizes migrant women and renders them susceptible to gender violence; and the migration regime contributes to sex trafficking because many restrictions push migrants into informal jobs which are unpro- tected. As such, it is important to link migration and trafficking and to see trafficking as part of a ‘continuum’ (Kelly, 2005: 238). In the case of Turkey, the migration and prostitution regimes should be considered in the design of preventive measures to prevent trafficking and the violation of human rights. 348 Asian and Pacific Migration Journal 24(3)

Unless there is a gender-sensitive, human-centered, and multidimen- sional approach that offers viable options for migrant women, ‘well-inten- tioned’ efforts aimed at preventing trafficking will be undermined by migration and prostitution regimes that will work against those they are supposed to help. A small step towards change should begin by improv- ing migrants’ rights, such as facilitating resident or work permits. Most importantly, a migrant should be able to exercise and defend her/ his fundamental human rights without fear of the police or of forced deportation. Providing migrants with information and legal assistance, such as access to support during the application process, would be a step in the right direction. It also is to be hoped that this examination of a local interpretation of the Palermo Protocol could be replicated else- where to draw attention to problems experienced by undocumented migrants, especially migrant women.

Declaration of conflicting interests The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this paper.

Funding This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.

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