Thailand Law Journal 2009 Spring Issue 1 Volume 12

3. Legal Responses

Underlying the pervasive cultural attitudes and blatant economic interests is a somewhat surprising and certainly confusing legal response.  Prostitution, though such a firm cultural and economic background of Thai society, is in fact illegal.  However, the law is often not enforced.  From an official perspective, prostitution is tolerated, as evidenced by the existence of tourist police at major sex tourist destinations to assist Western customers engaging in obvious sex-for-sale transactions.  From an unofficial perspective, cases of ownership and involvement by police and other government officials are well-known and documented.

D. Shifting Supply: Source of Trafficked People and People in Prostitution

Until the 1980s, primarily ethnic Thai women supplied prostitution in Thailand.  Originally, the women and girls trafficked into prostitution were ethnic Northern Thai women who were tricked by local and foreign traffickers through false promises of legitimate work.  In response, there were increased education programs about the risks of trafficking; mandatory primary education also reduced their vulnerability.  However, the demand for prostitution was not reduced.  As a result, after the 1980s, the supply of vulnerable girls and women shifted to the ethnic minority, a.k.a. tribal or hill tribe, women and girls living in Thailand, who because of deforestation and land use restrictions by the Thai government, are

forced to go into the cities to work in order to feed and support their families.  But they are ill-equipped for this kind of change: more than 60% of them have received no formal education.  Most don't even speak Thai, since their cultures are quite different from Thailand's.  And when young, uneducated tribal women come to the cities, they are often exploited in the workplace, with many ending up in the sex industry and/or other forms of abusive and bonded labor. [FN40]

Tribal people in Thailand are not automatically afforded citizenship.  The process of obtaining citizenship, even for those people whose families have been in Thailand for generations, is cumbersome and often impossible.  Their lack of citizenship is the primary factor that makes them vulnerable to exploitation, [FN41] including trafficking for prostitution, sexual exploitation, and labor exploitation. Much work has been done to improve the situation of the tribal people at risk of prostitution and sex trafficking. For example, there has been improved access to education for tribal girls:

By all accounts, there have been some significant improvements in the situation of hill tribe girls and women in the past 10 or 15 years.  Respondents particularly singled out the salutary effect of a compulsory education law mandating attendance through age 15 and government- and NGO-sponsored programs providing scholarships and other interventions to keep girls in grade school.  Development has also provided some positive aspects, increasing the standards of living for many villagers.  Reportedly, anti-trafficking programs supported by the Thai and US governments and other donors collaborating with NGOs have raised *831 villagers' awareness, enabling them to identify traffickers and unscrupulous job recruiters. Many now apparently understand the need for obtaining information in advance and the potential consequences of agreeing to job brokerage and clandestine travel for themselves or their relatives in the custody of agents. Although these programs have not tracked results nor been evaluated, those who work with trafficked or at-risk women and girls have noticed a decline in those trafficked who are from the hill tribes: “We see many fewer hill tribe girls [in the shelter] . . . villagers have information.” [FN42]

However, once again, the demand side factors are not being addressed; thus, the supply simply began to flow from outside of Thailand's borders. According to Karen Smith of the New Life Center, the trafficking situation of ethnic minorities from within Thailand has improved while the trafficking of ethnic minorities from other countries such as Burma, Laos, and China has grown worse. [FN43] This is confirmed by Siriphon Sakhrobanek of the Foundation of Women, who noted in 1997 that:

Trafficking in Thailand is changing. More and more children are going to secondary school. People in the villages now know where to go if they want to work in the sex industry. This is why traffickers turn to Burmese girls and the ethnic minorities, as well as girls from China. [FN44]

E. Situation in Burma: Feeding the Supply of Trafficked and Prostituted Women and Girls

       From the 1990s to the present, an increasing number of the women and girls in prostitution in Thailand are from Burma. [FN45] NGOs that work directly on rescuing victims have also reported that the majority of people in forced prostitution are from Burma.[FN46] Some Thai NGOs estimate that 20,000 Burmese women and girls have been trafficked into Thailand [FN47] and that the number of Burmese women in the Thailand sex industry totals 40,000. [FN48] Thus, while the risk of prostitution and trafficking for sexual exploitation is decreasing for Thai and tribal women in Thailand, because the demand for prostitution remains the same the supply has shifted to people from Burma, in particular from the Shan State. [FN49]

Burma is ruled by a military regime known as the SPDC, formerly SLORC, which has ruined the economy through mismanagement and corruption. Engaged in civil war against a number of its minority people, it also regularly commits human rights abuses against its people, including rape and forced relocations. The economic oppression, civil war, human rights violations, and resulting forced and voluntary migration makes people in Burma vulnerable to trafficking and other forms of exploitation. Research by Human Rights Watch and Asia Watch in 1992 and 1993 shows that “[t]he number of Burmese women recruited to work in Thai brothels has soared in recent years as an indirect consequence of repression in Burma (Myanmar) by the ruling State Law and Order Restoration Council (SLORC) and of improved economic relations between Burma and Thailand.”[FN50]

[FN40]. Welcome to the New Life Center Thailand, http:// www.newlifethailand.org/welcome.htm, (last visited Feb. 16, 2006).

[FN41]. David A. Feingold, Human Trafficking, Foreign Pol'y, Sept. 1, 2005, at 26:
               [A] lack of proof of citizenship is the single greatest risk factor for a hill tribe girl or woman to be trafficked or otherwise exploited. Without citizenship, she cannot get a school diploma, register her marriage, own land, or work outside her home district without special permission. Lack of legal status prevents her from finding alternate means of income, rendering her vulnerable to trafficking for sex work or the most abusive forms of labor.
        Id. at 28 (referring to studies by the U.N. Educational, Scientific and Cultural Organization).

[FN42]. Physicians for Human Rights, No Status: Migration, Trafficking & Exploitation Of Women In Thailand: Health and HIV/AIDS Risks for Burmese and Hill Tribe Women and Girls 30 (June 2004), available at http:// www.phrusa.org/campaigns/aids/pdf/nostatus.pdf (citing PHR interview with Patricia Green, Rahab Ministries on April 9, 2004, and PHR interview with Pasuk Phong, Faculty of Economies, Chulalongkorn University, on March 29, 2004).

[FN43]. Personal communication with Karen Smith, New Life Center (on file with author).

[FN44]. Siriphon Sakhrobanek et al., The Traffic in Women: Human Realities of the International Sex Trade (1997).

[FN45]. See, e.g., Jeffrey, supra note 2, at xiv (“[O]ver the course of the 1990s, analysts also noted increasing numbers of foreign women--particularly Burmese (including Burmese hill-tribe) and Chinese women--working in the Thai sex industry”); Donna M. Hughes et al., Coalition Against Trafficking in Women, Factbook on Global Sexual Exploitation: Burma/Myanmar, available at http:// www.catwinternational.org/factbook/ Burma_Myanmar.php (last visited Apr. 6, 2006). “  Girls from Burma ... are in more demand for the sex industry in Thailand since traffickers are luring fewer girls from Northern Thailand.” Id. “Fewer girls from Northern Thailand have entered the sex industry in the past few years. As their numbers decline they are replaced by women and girls from Burma and southern China.” Id.

[FN46]. Seabrook, supra note 3, at 159 (quoting a first hand account-- “[m]any of the prostitutes we see are Burmese, perhaps the majority”); Interview with NGO (estimating that roughly 95% of their cases involve people from Shan State based on work with cases of forced prostitution in Chiang Mai) (on file with author).

[FN47]. Modern Form of Slavery, supra note 23.

[FN48]. See generally Women's Org. from Burma & Women's Affairs Dep't, Nat'l Coal. Gov't of the Union of Burma, Burma: The Current State of Women in Conflict Areas, A Shadow Report to the 22d Sess. of CEDAW 30 (2000) [hereinafter Shadow Report], available at http:// www.womenofburma.org/Report/TheCEDAWShadowReport2.pdf (last visited Apr. 6, 2006).

[FN49]. Burma's Shan State borders the Northern Province of Thailand. A number of ethnic groups live in the Shan State, including Shan people (also known as Thai Yai who are ethnically related to Thais), majority Burmans, and ethnic minority or hilltribes, who live in and migrate around the region covered by Burma, Laos, Southern China and Thailand irrespective of political borders.

[FN50]. Modern Form of Slavery, supra note 23, at n.3.

This article is published with the kind permission of Christa Foster Crawford. The article originally appeared in Cardozo Journal of Law & Gender, Summer 2006 issue.