Gendered Discipline and Protective Custody

Article

Punishment & Society 2014, Vol. 16(2) 206–222 Gendered discipline and ! The Author(s) 2014 Reprints and permissions: sagepub.co.uk/journalsPermissions.nav protective custody of DOI: 10.1177/1462474513517019 trafficking victims in Asia pun.sagepub.com Maggy Lee University of Hong Kong, Hong Kong

Abstract In many parts of Asia, critics have noted the common but hitherto under-researched practices of detaining victims of human trafficking in semi-carceral institutions or ‘shelters’, in the name of victim protection and rescue. Although the formal justification for immigration detention and ‘protective custody’ may be different, there are clear parallels between the experience of trafficking victims in semi-carceral institutions and what Kalhan has termed ‘a quasi-punitive system of immcarceration’. This article seeks to add to the critical work on the changing nature and harms of immigration control by exploring the logic and practices of protective custody in Asia. How can we make sense of the regulatory purposes performed by semi-carceral institutions for trafficking victims? What do we know about women and girls’ experiences of protective custody in South and South-East Asia? In what ways does the dominant anti-sex trafficking discourse of ‘protection’ and ‘rescue’ intersect with gendered notions of belonging and citizenship? And, ultimately, what can a study of gendered carceral practices tell us about the problems and paradoxes of trafficking control?

Keywords Asia, human trafficking, semi-carceral institutions

Introduction There is now a growing volume of criminological literature that examines the criminalization of immigration, the securitization and militarization of border con- trols, the convergence between criminal and immigration law and control (or ‘crimmigration’) (Stumpf, 2006) and the ‘harms of crimmigration control ...inﬂicted through coercion, incarceration, exclusion, and deportation’

Corresponding author: Maggy Lee, University of Hong Kong, Pokfulam Road, Hong Kong. Email: [email protected] Lee 207

(Bowling, 2013: 298 and 300) (see also Aas and Bosworth, 2013; Bosworth, 2011; Grewcock, 2007; Lee, 2011; Pickering and Weber, 2006; Segrave et al., 2009; Weber and Pickering, 2011). In particular, the expansion of immigration detention and broadening of the categories of non-citizens subject to detention and removal in liberal democracies have attracted intense scrutiny. In the USA for example, Jonathan Simon (1998: 599) argued that the ‘reinvention’ of immigration imprisonment, the state’s growing reliance on indefinite administrative detention and the erosion of due process rights in the early 1990s were indicative of ‘a deeply prob- lematic turn in both migration policy and penal practice’, and ‘an important muta- tion of imprisonment as a modern technology of power’. The logic and expansion of immigration detention has proved to be even more pronounced today in the USA and increasingly throughout Europe (Bosworth and Kaufman, 2011). As Bosworth (2007: 174) argues in the British context, immigration detention ‘excludes non-citizens from British society’ in a physical and symbolic sense; it acts as ‘a sorting mechanism for determining the rights and entitlements of foreigners’ as well as ‘a strategy of social engineering underpinning a particular vision of British national identity’. What seems missing in the existing scholarship on immigration detention is the way in which detention has expanded and mutated for a particular category of unauthorized migrants, that is, trafficking victims within a diverse range of semi- carceral institutions. There are important reasons to examine detention-related practices for trafficking victims. While many commentators have noted a ‘shift from rehabilitation and reform to incapacitation and mass warehousing of surplus populations’ (Sudbury, 2005: xvi) in immigration detention and imprisonment, the ‘common’ but ‘underreported practice’ of holding trafficking victims in semi- carceral institutions (commonly known as ‘shelters’) remains closely associated with a welfarist language of rehabilitation and protection (Gallagher and Pearson, 2010: 73). Sexual exploitation is by far the most commonly identified and most discussed form of human trafficking (Anderson and Andrijasevic, 2008; Lee, 2011). As Kempadoo (2005a: 51) argues, one of the main messages of the dominant anti-sex trafficking discourse is about ‘rescuing, in a chivalrous, paternalistic, or missionary fashion, helpless ‘‘fallen’’ women from violent men of non-Western, ‘‘rogue’’ or disorderly nations’. Although the formal justification for immigration detention and ‘protective custody’ (Global Alliance Against Traffic in Women, 2007) may be different, there are clear parallels between the experience of trafficking victims in semi-carceral institutions and what Kalhan (2010: 43, emphasis in original) has termed ‘a quasi-punitive system of immcarceration’. Examining the logic and practices of protective custody for trafficking victims especially women and girls can, therefore, offer us important insights into a hitherto under-researched gendered disciplinary regime and carceral processes for unauthorized migrants. This article seeks to add to the critical work on the changing nature and harms of immigration control by exploring the logic and practices of victim protection in semi-carceral institutions in Asia. Although there are no global figures for 208 Punishment & Society 16(2)

trafficking victims in protective custody, there is evidence to suggest the ‘longest running and most established shelter programs for trafficking victims appear to be in South Asia, South East Asia, and Eastern Europe’ (United States Agency for International Development, 2007: 11). So how can we make sense of the regulatory purposes performed by semi-carceral institutions for trafficking victims? What do we know about women and girls’ experiences of protective custody in South and South-East Asia? In what ways does the dominant anti-sex trafficking discourse of ‘protection’ and ‘rescue’ intersect with gendered notions of belonging and citizenship? And, ultimately, what can a study of gendered carceral practices tell us about the problems and paradoxes of trafficking control?

Rethinking human trafficking and immigration control On one level, the language of anti-trafficking strategies is distinctly different from that regarding the control of illegal immigration. A number of international con- ventions (e.g. the Council of Europe ‘Convention on Action against Trafficking in Human Beings’ 2005), guidelines (e.g. United Nations High Commissioner for Human Rights ‘The Recommended Principles and Guidelines on Human Rights and Human Trafficking’ 2002), resolutions, regional declarations and national plans have stated that trafficked persons are to be dealt with as victims of crime and human rights violations, rather than as criminals; they should not be prosecuted, detained or punished because of their irregular migration or labour status.1 Protection is seen as the key to a victim-centred approach in trafficking that incorp- orates the ‘3Rs’ – ‘rescue, rehabilitation and reintegration’. As the US Department of State (2011: 2) stated, ‘governments need to enable identified trafficking victims to remain in the country, work, and obtain services without fear of detention or deportation for lack of legal status or crimes that the trafficker made them commit’. In practice, there is constant slippage between ‘illegal immigration’, ‘human trafficking’ and ‘forced prostitution’, which reflect state concerns about non- citizens and deviant ‘Others’ (Anderson and Andrijasevic, 2008; Kempadoo, 2005b; Lee, 2011; Segrave et al., 2009). Many trafficked victims were, and still are, arrested and prosecuted as immigration offenders on a range of travel and identity documentation offences, detained as a result of his/her involvement in criminal activities or swept up in anti-vice raids (Human Rights Watch, 2010).2 They are processed into the criminal justice–immigration control regime or con- fined in imprisonment facilities, including police lock-ups, immigration detention centres and prisons in countries of destination in the global North. In the UK, the Poppy Project which provided accommodation and support to women who have been trafficked into prostitution or domestic servitude, reported that 21 per cent of their referrals between 2001 and 2007 had been held within the prison or immigration estate (mostly as ‘illegal entrants’) (Stephen-Smith, 2008). Recent developments in immigration case management, including the setting up of the National Referral Mechanism (NRM) to ensure appropriate recognition and protection of trafficking victims, have not brought an end to the prosecution and Lee 209

detention of trafficking victims (Anti-Trafficking Monitoring Group, 2010). In their study on migrants in the female prison estate and immigration removal centres, Hales and Gelsthorpe (2012: 3–5) found a number of contributory factors for the systemic failure to identify trafficked women, including the perceptions and processing of these women as illegal migrants and criminal offenders (e.g. arrested for the use of false identity documentation, entering the UK without valid documentation, criminal offences such as property offences and production of cannabis) rather than as ‘victims of abuse’; failure by those making the arrest to respond appropriately to disclosures of victimization and to understand the impact of ongoing threats on irregular migrants; disempowerment of trafficked individuals by the criminal justice system from the point of arrest, legal representation, plea and sentence to immigration outcome. Other critics have also highlighted a number of concerns about the deprivations and hardships resulting from immigration detention in countries of destination in the North, including ‘depriving individuals of the ability to work and earn income, attend school, and maintain relationships’ (Human Rights Watch, 2010: 46–47), ‘inappropriate and excessive use of restraints’ (Amnesty International USA, 2009), (re)traumatization and other negative physical and psychological impact on immigration detainees.

Rhetoric and realities of victim protection in shelters These key concerns about immigration detention are equally, if not more, valid when traﬃcked victims who have been intercepted or ‘rescued’ are detained in residential facilities or so-called ‘safe shelters’. As Gallagher and Pearson (2010: 76–77) observed:

In countries and regions around the world, including Bangladesh, Central and Eastern Europe, Cambodia, India, Israel, Malaysia, Nepal, the Russian Federation, Nigeria, Sri Lanka, Taiwan, and Thailand, it is common practice for victims of traﬃcking to be eﬀectively imprisoned in government or private support facilities without being able to leave the shelter grounds beyond the occasional supervised excursion or trip to court. In some cases, these shelters are well-established institutions that provide a full range of assistance and support services to victims. In other cases, they are little more than jails.

Although shelters may differ in terms of size, location, length of stay, services provided and the population served, they are generally promoted as an integral part of the ‘rehabilitation, recovery and reintegration’ of trafficked persons either in countries of origin or destination. As one review document of US government funded shelter activities in foreign countries points out, there are ‘emergency, short- and long term shelters’ which may be open or closed and run by ‘governments, NGOs, international organizations, women’s organizations, or faith-based groups’ (United States Agency for International Development, 2007: 6). Persons trafficked across nation state borders may be referred to short-term shelters for legal 210 Punishment & Society 16(2)

assistance and medical treatment while waiting for repatriation; internal or cross- border ‘returning’ victims may be sent to long-term shelters for counselling, edu- cational and vocational training to facilitate their reintegration (United States Agency for International Development, 2007: 13–14). Notwithstanding a growing body of literature on criminal enforcement, imprisonment and immigration control, there has been relatively little scholarly and political scrutiny of ‘rehabilitation, recovery and reintegration’. As Gallagher and Pearson (2010) have argued, detention in shelters is only dealt with in an indirect or peripheral manner in international or regional treaties on human trafficking.3 ‘Residents’ in shelter detention are entitled to minimal legal protections even though their ‘protective custody’ may be involuntary and indefinite; in some countries, ‘escapees’ may be pursued and returned to shelters (e.g. in Thailand) while assisting a victim of trafficking to ‘escape’ is criminalized (e.g. in Malaysia). Individuals who are rescued and held in closed shelters against their will are trapped populations without any real say in their futures. There is a general lack of judicial oversight of ‘the necessity, legality and proportionality’ of shelter detention; instead, the routine detention of trafficking victims tends to be justified on grounds of rehabilitation or criminal justice policy (e.g. to facilitate trafficking prosecutions) (Gallagher and Pearson, 2010: 102–110), in spaces akin to what Agamben (1998: 170) has theorized as ‘zones of exception’ where ‘the very concepts of subjective right and juridical protection no longer made any sense’. There are no reliable figures of detainees or escapees from shelters, and very little is known about the conditions of semi-carceral institutions or life inside shelters. One notable exception is the research project conducted by two hundred Thai and migrant sex workers on the impact of anti-trafficking policy and practice, including the lived experiences of Thai and foreign-national women who have been apprehended and ‘rescued’ in police raids and held in shelters (Empower Foundation, 2012). Their report identified a number of anti-trafficking practices which are justified in the name of protection and assistance but nonetheless experienced by women and girls as highly intrusive, distressing and discriminatory. For example, medical tests (including vaginal examinations and screening for sexually infectious diseases) were routinely performed on women in suspected sex trafficking cases with or without their consent but rarely on men (Empower Foundation, 2012: x– xi). Trafficked women and non-trafficked migrant sex workers without immigration documents who are apprehended in ‘raid and rescue’ operations are held in man- datory detention in police cells or women’s shelters while receiving support or awaiting court hearings (including non-trafficked women who act as witnesses in anti-trafficking prosecutions). The average period of detention may be between six and nine months, but ‘periods of detention of 18 months to 2 years were also not uncommon’ (Empower Foundation, 2012: 61) due to lengthy court or repatriation processes. Women and girls who do not want to stay in the shelter may withdraw their co-operation with staff or refuse to take part in vocational training, which in turn created dilemmas for shelter staff ‘who see their role as supporting women Lee 211

who want to be helped, not to detain women against their will’ (Empower Foundation, 2012: 64). Other accounts that are produced by activists and human rights organizations also paint a disturbing picture of life in shelter detention for traﬃcking victims in South and South-East Asia. As the UN Special Rapporteur’s Report (Coomaraswamy, 2001: 18) noted in the Indian context, conditions of ‘protective custody’ in government homes ‘resembled a prison’ and were barely habitable:

The traﬃcked women were kept with mentally ill patients, deaf and dumb women and destitute women. Records with regard to the women in the home were not properly kept... All the women the Special Rapporteur spoke to were deeply unhappy and wanted to be released.

Similarly, the Global Alliance Against Traffic in Women (2007: 122–123) pointed out that those detained in government shelters cannot leave of their own free will; they have ‘no right to privacy or bodily integrity’ and that ‘indefinite incarceration, loss of liberty, forced medical examinations and appalling living conditions drive the young girls and women placed in these institutions back into sex work’. Under the UN Recommended Trafficking Principles and Guidelines 2002, states are encouraged to ensure that trafficking victims are not held in immigration detention; in practice, the distinction between the use of immigration detention and protective custody is not always so clear-cut. In Malaysia for example, the identi- fication and certification of ‘trafficked victims’ and their detention in government shelters is often conducted in a haphazard manner; cross-border migrants including trafficking victims are particularly vulnerable to being arrested for illegal entry or illegal stay in indiscriminate raids and held in immigration detention centres (or ‘depots’) (SUARA RAKYAT Malaysia, 2010). The poor conditions and punitive aspects of both immigration detention centres and government shelters have been well documented. As the US State Department’s Trafficking in Persons Report pointed out:

Government shelters resembled immigration detention centers, by denying victims basic freedoms ...Some victims were locked in rooms within the shelters ...The anti-trafficking law provides immunity to trafficking victims for immigration offenses such as illegal entry, unlawful presence, and possession of false travel documents, but victims continue to be detained and deported, as they would be if they were arrested for illegal immigration. (US Department of State, 2010)

Clearly, detention inflicts significant hardships and harms upon trafficking victims and other unauthorized migrants. According to the Human Rights Commission in Malaysia (SUHAKAM), 1300 illegal immigrants died in detention between 2002 and 2008 largely due to the conditions of detention and inadequate provision of healthcare.4 In Malaysia, both state and non-state agents are 212 Punishment & Society 16(2)

implicated in the processing of trafficking victims into the quasi-punitive regime of immigration detention and protective custody. Trafficking victims alongside illegal immigrants mainly from South-East Asia are subject to routine arrests and mass raids. Particularly controversial has been the use of RELA, the Ikatan Relawan Rakyat Malaysia5 (or ‘People’s Volunteer Corps’ originally used to guard against communists) of some half a million people to carry out joint raids on illegal migrants with the Malaysian police and immigration officers and co-manage Malaysia’s immigration detention centres (US Department of State, 2010). As the International Federation for Human Rights (FIDH) and Suara Rakyat Malaysia (SUARAM) (2008: 11) pointed out, RELA members have extensive powers, including ‘the right to bear and use firearms, stop, search and demand documents, arrest without warrant, and enter premises without warrant’. RELA has been criticized for human rights abuses, including excessive use of force, extor- tion of documented immigrants during raids and destroying the documentation of legal immigrants in order to secure more arrests (International Federation for Human Rights and Suara Rakyat Malaysia, 2008).

Humanitarian intervention in the global borderlands One common response to curtail the worst excesses of immigration detention has been to export trafficking control norms and new public management techniques from the North and to cast the unstable zones of the world system – or what Mark Duffield (2001) has termed the global ‘borderlands’ – as a particular terrain of expert knowledge and intervention. Strategies include the promotion of a vast array of international and regional frameworks, anti-trafficking legislation, action plans and toolkits; the ranking of states in terms of their compliance with US minimum standards in trafficking control;6 and donor assistance in implement- ing programmes of benchmarking, capacity building and performance auditing (Lee, 2013). Significant efforts and international funding have gone into initiatives to promote ‘national victim care standards’ and best practices in shelters, and to facilitate the ‘assistance, protection and voluntary return’ of victims of trafficking (Chemonics International, 2009). Through the implementation of donor-funded counter-trafficking projects especially in lower-tier countries on the US ‘Trafficking in Persons’ annual rankings, non-governmental organizations such as the International Organization of Migration (IOM) have provided ‘technical support and assistance’ to create ‘victim treatment and shelter management guidelines’ and standard operating procedures in ‘model shelters’, and to enhance ‘capacity building’ and shelter activities (International Organization of Migration, 2011).7 Whether the involvement of non-state actors and efforts of ‘governing at a dis- tance’ (Lee, 2013) could bring about more robust oversight mechanisms and sub- stantive constraints on the use of protective custody in the South is debatable. As Fassin (2007: 154–157) pointed out, there is ‘a complex web of relations’ between humanitarian organizations and the state, whereby non-governmental Lee 213

organizations have become ‘political actors’ engaged in ‘plays of alliance’ and ‘systems of negotiations with states and international institutions’. In the context of trafficking victim protection, while non-governmental organizations may be critical of state practices of immigration detention and recommend improved monitoring and service provisions, they are ‘not outside the institutional matrix of the contemporary border regime’ (Walters, 2011: 155). Rather than challenging the punitive regime of protective custody, the spread of trafficking control norms, new public management techniques and ‘an aggressive unilateral monitoring regime’ (Gallagher and Pearson, 2010: 80) may paradoxically serve to legitimize an expansion of the care and control of trafficking victims. In Thailand for example, the closed shelter Baan Kredtrakarn which accommo- dates ‘up to 500 trafficked or otherwise exploited women and girls’ has been widely promoted as ‘the flagship of the country’s anti-trafficking responses’ to a national as well as international audience (Gallagher and Pearson, 2010: 82). Closed shelters are politically attractive because ‘a captive and permanent victim population’ can easily be translated into quantifiable evidence of state’s anti-trafficking commit- ment and efforts (Gallagher and Pearson, 2010: 82). However, researchers who had either visited or been detained in the shelter, described life inside the shelter in a more sombre tone:

Originally a leper colony, [Baan Kredtrakarn] has been used for more than 50 years to ‘rehabilitate prostitutes’ and more recently also supports traﬃcked women and girls ...Sex workers joke about it but we are really scared of being sent to Ban Kred mainly because of its reputation as a ‘prison for prostitutes’. (Empower, 2012: 62)

The shelter operates ‘a system of punishments’ if the women and girls ‘misbehave’, including ‘scrubbing the bathroom ﬂoors, not being allowed to have treats, and not being allowed to see visitors’ (Empower, 2012: 62). Women are either prohibited from contacting family, friends or outside agencies, or their letters and phone calls are monitored by shelter staﬀ:

This is justiﬁed again as a protective measure, especially for those whose family members or friends may be suspected of being part of the traﬃcking ...This leaves them totally isolated from their families and communities and allows no recourse or access to justice if they are mistreated in the shelter. In this regard they are treated more like criminals rather than victims. (Empower, 2012: 62)

(Re)invention of pastoral care and gendered control As Walters (2011: 143 and 154–156) argued in his analysis of humanitarian intervention in border regimes, the governance of migrants has become a ‘complex assemblage’ as elements of ‘control’ and ‘contestation’ are combined with ‘practices of pastoral care, aid and assistance’ in a ‘tense but mutually 214 Punishment & Society 16(2)

supportive relationship’. The emerging configuration of pastoral care and control of trafficked victims has a differential impact on women and girls. In principle, one of the common justifications for ‘rescuing’ trafficked persons (even against their will) is to protect them from further harm. Yet, the arguments are highly gendered and typically articulated in relation to women and girls who are perceived as ‘unruly’, vulnerable to sexual exploitation, or in need of reform. Indeed, the use of detention as a mechanism to ‘correct’ wayward women and to produce docile bodies is not new. There is a substantial criminological literature on the early reformatory movement and contemporary penal practices, where women who were convicted of petty property crimes, prostitution or regarded as ‘in danger of falling into vice’ were targeted for gendered discipline and ‘embodied surveillance’ (McCorkel, 2003) by institutional regimes and taught acceptable domesticity and feminine propriety (Hannah-Moffat, 2001; Howe, 1994; Rafter, 1992). Feminists have argued that women are often required to carry ‘the burden of representation’, as they are constructed as ‘the symbolic bearers of the collectivity’s identity and honour, both personally and collectively’ (Yuval-Davis, 1997). Those who ‘run around’ on their own are seen as transgressing normative boundaries of female propriety and assumptions about women’s place in the home and as upholders of the honour and purity of the nation. The intersections of gendered systems of power and discipline under a paternalistic state and the dominant anti-sex trafficking discourse are clearly evident in the protective custody of trafficking girls and women. There may be differing regimes of protective custody and degrees of detention across South and South-East Asia, and some shelters may aspire to empower women in a more progressive manner. Nevertheless, rehabilitative ideals are deeply embedded in national politics of ‘othering’ and social disciplinary projects, and victims who do not want to be ‘rescued’ or who seek alternative forms of support (e.g. financial assistance) are silenced or marginalized. As Ho (2010) noted about the growth of ‘pastoral/par- ental power’ in anti-trafficking interventions in post-militarized Taiwan, local conservative-minded NGOs and Christian groups have been able to (re)present themselves variously as ‘women’s organizations’, ‘charity organizations’, ‘child- protection organizations’, ‘social services’ and ‘protean delegates ‘‘of the people’’’ in civil affairs and to transform themselves into ‘full-fledged’ NGOs. In the process, a range of local NGOs enter into a ‘new power formation ...of new populism’ with state and other non-state actors; at the same time, state power is extended to cover ‘ever more social spheres ...[more] regulation/surveillance of marginalized populations ...[and] where bodies and everyday life serve as prime targets’ (Ho, 2010: 551). The global crusade against human trafficking has enabled diverse NGOs and women’s groups with social disciplinary or abolitionist agenda to reframe gendered anxieties in the midst of significant socio-economic transformations; tap into new global governance networks and agendas that conflate trafficking with moral and sexual transgressions; and to reinforce normative boundaries of belonging within a nation state. Yet, the gendered project to enforce cultural ideals Lee 215

of ‘respectable womanhood’ is often at odds with the social structures of inequal- ities and harsh realities of women’s lives in economies that are increasingly reliant on female labour and global sex tourism. As Miller and Carbone-Lopez (2013: 96–99) argued in relation to the detention and rehabilitation of women engaged in transactional sex in Sri Lanka, reformation is ‘unattainable’ for the majority of women trapped in the socio-economic realities of post-colonial Sri Lanka. In this context, mass escape and the institutional responses reﬂected not only women’s ‘resistance’ to the conditions of detention and rehabilitative ideals of a militarized, paternalistic state but also the facility’s ‘recognition of the limitations of its reform agenda’. Ultimately, ‘the idealized good girl of Sinhala Buddhist nationalism was not a subject position embraced by all women ...nor was it widely available’ (Miller and Carbone-Lopez, 2013: 99).

Protection as prevention in anti-trafficking interventions in Nepal The development of anti-trafficking interventions in Nepal highlights these problems and paradoxes in paternalistic protection in particularly stark terms. In Nepal there is a substantial foreign development aid establishment and anti-trafficking task forces (such as United Nations Inter-Agency Task Force on Trafficking, and Joint Initiative in the Millennium Against Trafficking of Women and Girls in Nepal) sponsored and/or co-ordinated by agencies such as UNICEF, ILO, OHCHR, UNDP and USAID.8 A number of anti-trafficking interventions have been concentrated in the border districts, where one of the most common measures by local NGOs is to spot potential victims of trafficking through raids (e.g. border town hotels) and border patrolling. The effectiveness of heightened control in border zones in preventing human trafficking is highly debatable however. As Hausner’s (2007: 117) case study in three Nepalese border towns reveals, ‘there is no way to know whether, in any one case, a patroller is effectively stopping a trafficker or inhibiting a migrant woman’s mobility’. Any ‘signs’ of trafficking are rarely clear in transit or self-evident during border-crossing, as the use of force, debt bondage or exploitation may not be apparent until later stages of migratory movement. Instead, there is evidence that ‘the massive presence of NGOs along the major border transits’ has displaced the trafficking activities to alternative routes and exit points where ‘NGOs are not active’ (Sijapati et al., 2011). Nevertheless, anti-trafficking interventions have continued to proliferate in border zones. In the process, alliances or ‘novel assemblages’ (Lee, 2013; Sassen, 2008) between state and non-state organizations have emerged. One example is Maiti Nepal, a local NGO which claimed to have rescued and rehabilitated ‘more than 12,000 women and girls’ in Nepal notably through its controversial practice of border patrolling to intercept suspected trafficking victims (www. maitinepal.org). This highly influential organization and its founder have received widespread international attention from the global media (CNN ‘Hero of the Year’ 2010 award), and its work has been featured in a documentary produced in 216 Punishment & Society 16(2)

co-operation with International Justice Mission. Here in the open border between India and Nepal, Nepalese citizens have traditionally been able to travel back and forth without immigration control for family visits, buying and selling goods, con- ducting religious pilgrimages and so on as a mundane part of their everyday life. But while male migration has been a longstanding and accepted practice in Nepal, female migration is now heavily scrutinized, policed and stigmatized in the name of trafficking prevention and rescue. As Crawford (2010: 123) argues, ‘Western stereotypes’ of a generic ‘third world woman’ as passive, needy, backward, and naı¨ve have been ‘filtered through and augmented by existing systems of gender, caste, [class] and the development industry’ in the cultural construction of sex trafficking in Nepal. Maiti Nepal employs trafficking survivors as ‘border guards’ in surveillance teams that patrol with border police and private security guards, posts them at official border crossing points along the Nepal–India border and ‘vigilance booths’ to observe daily crossings and conduct vehicle searches, and to prevent girls and women from ‘falling into the clutches of traffickers’ (Maiti Nepal, 2011: 10). In the name of paternalistic protection, any female crossing the border has to bear the burden of proving that she is not being trafficked. If a woman cannot provide a satisfactory explanation for her travel, she may be intercepted and detained. Indeed, women and girls have been forcibly intercepted and ‘rescued’ by Maiti Nepal ‘border guards’ and returned to their villages against their will or institutio- nalized in shelters, ‘transit homes’ or ‘care homes’ for an indefinite period:

[T]rafficking is determined from conflicting or hesitant answers being given by the ‘suspects’ (adult women as well as minors) to the NGO workers and police. For example, if a group of three girls are crossing together and they all give conflicting accounts of what they are doing, then they may be detained on suspicion of trafficking [...] While recognizing a well-intentioned desire to protect women’s rights, the present ad hoc system could possibly limit a person’s freedom or right to mobility. This is particularly the case with respect to adult women. NGO workers who were inter- viewed for this report noted that women are sometimes ‘very angry’ and ask, ‘Why have we been stopped?’ Some women in the transit homes need to be ‘convinced’ that they were about to be trafficked. (Evans and Bhattari, 2000: 22)

The lack of accountability and consequences of NGO intervention can be deeply troubling, especially when they are cloaked in the name of protecting women and girls. As Crawford (2010) pointed out, there are few independent accounts of the women’s perceptions and experiences of interception, their ‘voluntary’ stay at transit homes, how many are released to continue their travel or returned to their villages and how many of them experienced the empowerment promised by their rescuers. One exploratory study conducted by ‘Save the Children’ provided some insights into the experiences of 12 girls and women intercepted and detained at a Maiti Nepal transit home (Chen and Marcovici, 2003). Although very few participants in the study seemed to ﬁt the indicators of being ‘at risk’ of traﬃcking, many Lee 217

participants thought that Maiti Nepal had been ‘right’ to intercept them and reported that the experience of being detained and ‘educated’ about trafficking had taught them not to travel alone; others felt that being intercepted and kept in the transit home by Maiti Nepal resulted in stigmatization in their home villages (Chen and Marcovici, 2003: 12–13). ‘Search and rescue’ operations of this kind blur the lines between prevention, protection and control. They are predicated on particular gender stereotypes and conservative patriarchal values rather than the social realities of border crossing and economic realities of family and state reliance on remittances from migrant workers. As O’Neill’s (2001) case study of the ‘rescue’ of 15 Nepalese female would-be migrants suggests, NGOs, the state and media often deploy a powerful discourse on trafficking that ignores the collective migration decisions of women and their families and problematizes women’s agency and sexual morality. Rescue operations and fear-based trafficking prevention campaigns target particular at- risk population groups (i.e. women) and employ messages that discourage migration, with the aim of convincing aspirant female migrants that sexual exploitation and abuse lie at the end of the migration road. The net results have been to decrease viable or ‘safe migration’ options for women, by enabling state and non-state actors to increase measures to control and deter the movement of female migrants (Lee, 2013). Indeed, a gender-specific ban on migration (e.g. banning Nepali women to travel to the Gulf States for work) has been justified on the basis of potential risks and trafficking prevention at a time when male migration to that region was being encouraged. But rather than reduce the problem of exploitation, such movement restrictions have brought troubling consequences. They tend to deny women of their rights as full citizens, reduce whatever oversight and protection women might have had as legal migrants, and push them into the hands of more organized criminal groups, more dangerous routes (e.g. travelling to the Gulf States via India or Bangladesh) and more vulnerable situations (Sanghera and Kapur, 2000). More broadly, such ‘paternalistic restrictions infantilise women and refuse to recognise their desire and ability to move, clandestinely, if legal means are not available to them’ (Global Alliance Against Traffic in Women, 2007: 130).

Conclusion The expansion of ‘rescue’ interventions and protective custody within semi-carceral institutions in Asia raises key questions for the study of gendered discipline and global control of unauthorized mobilities. As Bosworth and Kaufman (2011: 453) have argued, prisons and immigration detention centres in the global North are ‘sites of containment ...where policy and practice are shaped not by rehabilitation or deterrence, but by border control’. Yet the emerging picture of the semi-carceral estate in Asia suggests that gendered discipline also operates through reform and rescue, as the dominant anti-sex traﬃcking discourse has enabled state and non- state actors to rework and reinvigorate models of paternalistic protection in order 218 Punishment & Society 16(2)

to transform fallen women into ‘docile gendered subjects aligned with the state’s priorities for its imagined citizenry’ (Miller and Carbone-Lopez, 2013: 98). While there are degrees of deprivation and harm that different categories of non-citizens are subjected to across time and place, there is overwhelming evidence to suggest that women are disproportionately swept into a quasi-punitive system of protective custody with very little legal protection, judicial oversight or critical scrutiny. These problems and paradoxes are not going to disappear, especially as state and non- state actors in countries of destination and origin continue to be entangled in a complex web of power relations, negotiations and contestations of global governance of mobilities and citizenship. To the extent that punishment and discipline is ‘embedded in the national/cultural [and institutional] specificity of the environment that produces it’ (Melossi, 2001: 406, Miller and Carbone-Lopez, 2013), protective custody of trafficking victims constitutes a key site for examining the hybridity of care and control and their gendered consequences in the global borderlands and for theorizing punishment beyond the model of criminal justice–immigration control apparatus and state-centric modes of discipline.

Acknowledgements I would like to thank Sharon Pickering and Mary Bosworth for inviting me to the Prato Workshop and the two anonymous reviewers for their suggestions and extremely useful comments on an earlier draft of this article.

Notes 1. For example, The Recommended Principles and Guidelines on Human Rights and Human Trafficking developed by the UN High Commissioner for Human Rights in 2002 considers detention of victims as ‘inappropriate and, implicitly, illegal’. Under its provisions, states are encouraged to ensure that ‘trafficked persons are not, in any circumstances, held in immigration detention or other forms of custody’ (see Gallagher and Pearson, 2010: 86). For an extensive commentary on the UN guidelines, see http://www.ohchr.org/Documents/Publications/Commentary_ Human_Trafficking_en.pdf (accessed 3 September 2013). 2. For a discussion of recent cases where the Court of Appeal in the UK overturned criminal convictions of trafficked victims for drug offences of working in cannabis factories and for using a false passport, see ‘Victims of trafficking win appeals against convictions’, News and Press Releases, 21 June 2013. Available at: http:// www.antislavery.org (accessed 3 September 2013). 3. See Gallagher and Pearson (2010) for a full discussion of the relevant provisions and international legal definition of ‘detention’: the condition of ‘any person deprived of personal liberty except as a result of conviction for an offence’. 4. Cited in Global Detention Project ‘Malaysia detention profile’, see http://www. globaldetentionproject.org/countries/asia-pacific/malaysia/introduction.html 5. According to critics, RELA was a volunteer force originally created in the 1970s to guard against communists in the country and ‘to assist, maintain and safeguard Lee 219

peace and security’ and has now been transformed into a group for tracking down ‘illegal migrants’ (International Federation for Human Rights and Suara Rakyat Malaysia, 2008). 6. Much has been written about the ‘Americanization’ of global trafficking control, notably through the US-defined minimum standards for the elimination of trafficking in its Trafficking in Persons (TIP) Report annual review process and the ranking of individual states’ compliance with those standards in the annual TIP Report. For a critique, see Kempadoo (2005a) and Segrave et al. (2009). 7. The IOM is said to have implemented over 200 counter-trafficking projects in 84 countries and assisted over 14,000 victims of trafficking worldwide (www.iom.int). For its counter-trafficking activities in Asia, see www.iom.int/cms/en/sites/iom/ home/where-we-work/asia-and-the-pacific. For an analysis of the role of the IOM in migration management, see Andrijasevic and Walters (2010). 8. Donor assistance in anti-trafficking programmes in Nepal has significantly increased the number of NGOs in the field: an estimated 57 NGOs were said to have been involved in anti-trafficking in 2000s, even though many were unable to provide any evidence of their anti-trafficking work or what they did with their funds (see Kaufman and Crawford, 2011). For a critique of the development discourse and industry in Nepal, see Fujikura (2001).

References Aas KF and Bosworth M (eds) (2013) The Borders of Punishment: Migration, Citizenship, and Social Exclusion. Oxford: Oxford University Press. Agamben G (1998) Homo Sacer: Sovereign Power and Bare Life. Stanford, CA: Stanford University Press. Amnesty International USA (2009) Jailed without justice. Amnesty International. Available at: http://www.amnestyusa.org/immigrant-detention/page.do?id¼1641031 Anderson B and Andrijasevic R (2008) Sex, slaves and citizens: The politics of anti- trafficking. Soundings 40: 135–145. Andrijasevic R and Walters W (2010) The International Organization for Migration and the international government of borders. Environment and Planning D: Society and Space 28(6): 977–999. Anti-Trafficking Monitoring Group (2010) Wrong kind of victim? One year on: An analysis of UK measures to protect trafficked persons. Anti-Slavery International for the Anti-trafficking Monitoring Group. Available at: http://www.antislavery. org/includes/documents/cm_docs/2010/a/1_atmg_report_for_web.pdf (accessed 18 December 2013). Bosworth M (2007) Immigration detention in Britain. In: Lee M (ed.) Human Trafficking. Cullompton: Willan, pp. 159–177. Bosworth M (2011) Deportation, detention and foreign-national prisoners in England and Wales. Citizenship Studies 15: 583–595. Bosworth M and Kaufman E (2011) Foreigners in a carceral age: Immigration and imprisonment in the United States. Stanford Law and Policy Review 22: 429–454. 220 Punishment & Society 16(2)

Bowling B (2013) The borders of punishment: Towards a criminology of mobility. In: Aas KF and Bosworth M (eds) The Borders of Punishment: Migration, Citizenship, and Social Exclusion. Oxford: Oxford University Press, pp. 291–306. Chemonics International (2009) USAID anti-trafficking in persons programs in Asia: A synthesis. Available at: http://pdf.usaid.gov/pdf_docs/PDACT220.pdf Chen C and Marcovici K (2003) Exploring the status of reintegrated girls: A partici- patory study. Save the Children. Available at: www.sacethechildren.net/nepal/key_ issues/reintegration_study_final.doc. Coomaraswamy R (2001) Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences: Mission to Bangladesh, Nepal and India on the Issue of Trafficking of Women and Girls (28 October–15 November 2000). E/CN.4/2001/73/ Add.2. Geneva: United Nations. Crawford M (2010) Sex Trafficking in South Asia. London: Routledge. Duffield M (2001) Governing the borderlands: Decoding the power of aid. Disasters 25(4): 308–320. Empower Foundation (2012) Hit and run: The impact of anti-trafficking policy and practice on sex workers’ human rights in Thailand. Available at: http:// www.empowerfoundation.org/sexy_file/Hit%20and%20Run%20%20RATSW% 20Eng%20online.pdf. Evans C and Bhattari P (2000) A Comparative Analysis of Anti-Trafficking Intervention Approaches in Nepal. Kathmandu: Asia Foundation and Population Council. Fassin D (2007) Humanitarianism: A nongovernmental government. In: Feher M (ed.) Nongovernmental Politics. Brooklyn, NY: Zone Books, pp. 149–159. Fujikura T (2001) Discourses of awareness: Notes for a criticism of development in Nepal. Studies in Nepali History and Society 6(2): 271–313. Gallagher A and Pearson E (2010) The high cost of freedom: A legal and policy analysis of shelter detention for victims of trafficking. Human Rights Quarterly 32: 73–114. Global Alliance Against Traffic in Women (2007) Collateral Damage: The Impact of Anti-Trafficking Measures on Human Rights around the World. Bangkok: GAATW. Grewcock M (2007) Shooting the passenger: Australia’s war on illicit migrants. In: Lee M (ed.) Human Trafficking. Cullompton: Willan, pp. 178–209. Hales L and Gelsthorpe L (2012) The Criminalisation of Migrant Women. Cambridge: Institute of Criminology, Univesity of Cambridge. Hannah-Moffat K (2001) Punishment in Disguise: Penal Governance and Federal Imprisonment of Women in Canada. Toronto: University of Toronto Press. Hausner S (2007) Border town in the Tarai: Sites of migration. Occasional Papers in Sociology and Anthropology 10: 107–112. Ho J (2010) Queer existence under global governance: A Taiwan exemplar. Positions 18(2): 537–554. Howe A (1994) Punish and Critique: Towards a Feminist Analysis of Penality. London: Routledge. Human Rights Watch (2010) US: Victims of human trafficking held in ICE detention: Letter to the US Department of State on 2010 Trafficking in Persons Report, Lee 221

19 April. Available at: http://www.hrw.org/en/news/2010/04/19/us-victims-trafficking- held-ice-detention#_ftn10 International Federation for Human Rights and Suara Rakyat Malaysia (2008) Undocumented migrants and refugees in Malaysia: Raids, detention and discrimin- ation. FIDH Migration and Asylum Policies Report No. 489/2, March. Available at: http://www.fidh.org/IMG/pdf/MalaisieCONJ489eng.pdf International Organization of Migration (2011) Counter Trafficking and Assistance to Vulnerable Migrants: Annual Report of Activities 2011. Geneva: IOM. Available at: http://www.iom.int/files/live/sites/iom/files/What-We-Do/docs/Annual_Report_ 2011_Counter_Trafficking.pdf Kalhan A (2010) Rethinking immigration detention. Columbia Law Review Sidebar 110: 42–58. Kaufman M and Crawford M (2011) Sex trafficking in Nepal: A review of intervention and prevention programs. Violence Against Women 17(5): 651–665. Kempadoo K (2005a) Victims and agents of crime: The new crusade against trafficking. In: Sudbury J (ed.) Global Lockdown. New York: Routledge, pp. 35–55. Kempadoo K (ed.) (2005b) Trafficking and Prostitution Reconsidered: New Perspectives on Migration, Sex Work, and Human Rights. Boulder, CO: Paradigm. Lee M (2011) Trafficking and Global Crime Control. London: Routledge. Lee M (2013) Human trafficking and border control in the Global South. In: Aas KF and Bosworth M (eds) The Borders of Punishment: Migration, Citizenship, and Social Exclusion. Oxford: Oxford University Press, pp. 128–145. Maiti Nepal (2011) Annual report. Available at: http://www.maitinepal.org/admin/ uploaded/1383371724.pdf (accessed 18 December 2013). McCorkel A (2003) Embodied surveillance and the gendering of punishment. Journal of Contemporary Ethnography 32: 41–76. Melossi D (2001) The cultural embeddedness of social control: Reflections on the com- parison of Italian and North-American cultures concerning punishment. Theoretical Criminology 5(4): 403–424. Miller J and Carbone-Lopez K (2013) Gendered carceral regimes in Sri Lanka: Colonial laws, postcolonial practices, and the social control of sex workers. Signs: Journal of Women in Culture and Society 39(1): 79–103. O’Neill T (2001) ‘Selling girls in Kuwait’: Domestic labour migration and trafficking discourse in Nepal. Anthropologica 43(2): 153–164. Pickering S and Weber L (eds) (2006) Borders, Mobility and Technologies of Control. Dordrecht: Springer. Rafter NH (1992) Partial Justice: Women, Prisons, and Social Control. New Brunswick, NJ: Transaction Press. Sanghera J and Kapur R (2000) An Assessment of Laws and Policies for the Prevention and Control of Trafficking in Nepal. New Delhi: Asia Foundation, Nepal and Population Council. Sassen S (2008) Neither global nor national: Novel assemblages of territory, authority and rights. Ethics and Global Politics 1: 61–79. 222 Punishment & Society 16(2)

Segrave M, Milivojevic S and Pickering S (2009) Sex Trafficking: International Context and Response. Willan: Cullompton. Sijapati B, Limbu A and Khadka M (2011) Trafficking and Forced Labour in Nepal: A Review of Literature. Nepal: Centre for the Study of Labour and Mobility; Kathmandu: Centre for the Study of Labour and Mobility and Himal Books. Simon J (1998) Refugees in a carceral age: The rebirth of immigration prisons in the United States. Public Culture 10(3): 577–607. Stephen-Smith S (2008) Prisoners with No Crime: Detention of Trafficked Women in the UK. London: The Poppy Project. Stumpf J (2006) The crimmigration crisis: Immigrants, crime and sovereign power. Bepress Legal Series. Working Paper 1635. Available at: http://law.bepress.com/ expresso/eps/1635 SUARA RAKYAT Malaysia (2010) Combating human trafficking must not be at the expense of human rights. Press statement, 3 November. Available at: http:// idcoalition.org/suara-rakyat-malaysia-press-statement-combating-human-trafficking- must-not-be-at-the-expense-of-human-rights/ Sudbury J (ed.) (2005) Global Lockdown: Race, Gender, and the Prison-Industrial Complex. New York: Routledge. United States Agency for International Development (2007) The Rehabilitation of Victims of Trafficking in Group Residential Facilities in Foreign Countries. Washington, DC: Office of Women in Development, USAID. Available at: http:// pdf.usaid.gov/pdf_docs/PNADK471.pdf US Department of State (2010) Trafficking in Persons Report 2010. Washington, DC: US Department of State. Available at: http://www.state.gov/j/tip/rls/tiprpt/2010/ 142760.htm US Department of State (2011) The 3 Ps: Prevention, Protection, Prosecution. Washington, DC: US Department of State, Office to Monitor and Combat Trafficking in Persons. Available at: http://www.state.gov/documents/ organization/167334.pdf Walters W (2011) Foucault and frontiers: Notes on the birth of the humanitarian border. In: Bro¨ckling U, Krasmann S and Lemke T (eds) Governmentality: Current Issues and Future Challenges. New York: Routledge, pp. 138–164. Weber L and Pickering S (2011) Globalization and Borders: Deaths at the Global Frontier. London: Palgrave Macmillan. Yuval-Davis N (1997) Gender and Nation. London: SAGE.

Maggy Lee is Associate Professor in the Department of Sociology at the University of Hong Kong. Her recent books include Human Traﬃcking (Willan, 2007) and Traﬃcking and Global Crime Control (SAGE, 2011). Her current research projects include ‘Lifestyle migration in East Asia: A comparative study of British and Asian lifestyle migrants’ (funded by the Research Grants Council of Hong Kong and ESRC in the UK) and ‘Female transnational professionals in Hong Kong’ (funded by the University Grants Committee in Hong Kong).