Thailand Law Journal 2012 Fall Issue 1 Volume 15

As this quote suggests, trafficking is something done to women and children, whereas it is something done complicitly by men. Men can choose; women and children cannot. In reality, of course, men may find themselves tricked into migration and become just as exploited-finding their labor conditions just as intolerable.⁹

Other activists and academics¹⁰ have challenged the paradigm of trafficking and prostitution on other grounds. Their criticisms rest on a number of issues. First, while trafficking for prostitution is seen as the most widespread form of trafficking, in reality, it may not be so.¹¹ Because so many reports of trafficking are based-these academics argue-on simplistic, sensationalistic stories and unsubstantiated numbers, the extent and nature of the problem remains unclear.¹² Furthermore, this simplistic schema can be actively damaging as it hijacks "attention away from structural, underlying causes that give rise to exploitation, structural
violence, and the coercion of (migrant) workers."¹³

Second, trafficking has become highly gendered and sexualized so that while the term should neutrally cover all forms of forced migration, it has, in reality, become unhealthily focused on just one aspec - he sexual exploitation, victimization, and degradation of women and girls.

Third, this model of trafficking almost always locates trafficked women and girls in the sex industry and brothels of red light districts. While this makes it easier to raid such places and "rescue" the victims, it ignores the reality that not all girls and women are trafficked into the sex industry, and not all women who work in the sex industry do so in brothels. Indeed, many may work casually on the streets or in rented apartments, while others may be forced into completely nonsexual kinds of labor.¹⁴

Fourth, other criticisms of conflating trafficking and prostitution are based on the way that this model is not just sexualized, but also racialized, appealing to racist and nationalist sentiments which can be used to justify and enforce laws against illegal migration. As a result, this model may actually victimize those who have migrated illegally more severely as their "rescue" may involve being deported and returned home to where the factors that drove them out-global inequalities, war, and poverty-have
not improved. In such situations, victims are vulnerable once more to illegal forms of migration.

Fifth, the question of consent and the extent to which women and even children can make any sort of informed decisions is missing from many accounts of trafficking. It is inconceivable to many activists that some women may choose to migrate illegally, even when they know the dangers, or make bad decisions and end up in a worse situation than they expected.
Yet, as several authors have pointed out, many trafficked women do not see themselves as having been forcibly trafficked or tricked against their will into migration, and they do not identify with the label of victim.¹⁵ These women migrate with an awareness of the risks involved but also with an understanding of the opportunities. Even if their situations turn out to be
much worse than they had imagined, these women and children still do not relate to the stereotyped representation of themselves as trafficking victims, forced against their will into prostitution.

Finally, critics of the Protocol argue that its definition confuses the morality and criminality of trafficking with that of all forms of prostitution, understanding sex work as invariably wrong and exploitative-a stance that many sex-worker advocacy groups reject.¹⁶

C. Children and Trafficking

While the debates between abolitionists and those who argue for different perspectives on sex work and trafficking have generated a great deal of attention in relation to adult trafficking, there have been no such deliberations when it comes to children.¹⁷ Under international law, the trafficking of children does not need to involve coercion or force. Any person under the age of eighteen involved in prostitution or other illegal activities is trafficked, regardless of consent or the tactics used in
recruitment.¹⁸ Such safeguards were included to protect children and to support other international legislation such as the UN Convention on the Rights of the Child (UNCRC).¹⁹

However, these safeguards allow for no possibility that children are capable of making active decisions about prostitution or migration.²⁰ This is not to suggest that children have the right to choose prostitution, that it does not damage them, or that they should not be protected by every legal means possible. Yet, child trafficking, even more so than adult trafficking, has come to be seen almost entirely in the context of sexual exploitation. So much so that CATW has asserted: "Children are trafficked for forced labor, domestic work, as child soldiers, and as camel jockeys, but most children are trafficked for sexual exploitation. And girls trafficked for forced labor and domestic work often end up sexually exploited by their employers."²¹ Although it certainly is not the express intent of such a quote, it does imply a hierarchy of abuse in which sexual exploitation is the worst possible form. Such a view minimizes other forms of suffering, focuses on the sexual exploitation of children, and ignores the real tragedies faced by other children doing dangerous work.

III. CHILD TRAFFICKING AND PROSTITUTION IN THAILAND

A. Early Roots
Thailand has a long history of being linked with prostitution and trafficking; while the country's problems are not necessarily the most acute, it is often perceived as having particularly severe problems. As early as the 1920s, the League of Nations was investigating accounts of international involvement in the Thai sex industry.²² In 1933, the League of Nations published a report on the trafficking of women and children in the East,²³ claiming that Thai, Chinese, and Russian women were selling sex in Thai brothels, and 40 percent of these women were under the age of twenty. Although fears about women trafficked as prostitutes and "mail-order brides" continued to surface in the 1970s,²⁴ anxiety over child trafficking began to receive particular attention in the 1990s when the issue of the commercial sexual exploitation of children became a major international
concern.²⁵

B. Public and Media Coverage in the 1990s

In the 1990s, campaigns by the media and nongovernmental organizations (NGOs) claimed that thousands of Western men were traveling overseas in order to have sex with children. Lurid stories appeared in national and international newspapers with headlines such as "Disneyland for pedophiles," "Pedophiles find paradise on a white beach in Thailand," or "Voyage to a life of shattered dreams."²⁶ These articles would usually tell the heart-wrenching stories of a Southeast Asian girl who was either cruelly duped or sold by her impoverished and greedy parents into a life of prostitution. She would be taken to a brothel, forced to have sex with up to twenty clients a night, usually foreigners, and then be rescued by a charity or journalist, only to discover that she was HIV-positive and had a limited time to live.²⁷

One story, titled, "The Littlest Prostitutes," is typical of many that appeared in the early 1990s:

Nit, a peasant girl from the north, was sold for the price of a television. In the Bangkok shelter where we met, she sat politely
on the edge of a sofa, fidgeting with her hair. At 13, she still looked small and guileless enough to play with dolls. And she
talked only in whispers. Five months ago, an agent paid her father 8,000 baht (about $320). The agent, a soldier, told her she would wash dishes; instead, he took her to a house with 15 other girls.

9 For accounts of these conditions, see generally Kevin Bales, DISPOSABLE PEOPLE: NEW SLAVERY IN THE GLOBAL ECONOMY (2004) and Christien van den Anker, THE POLITICAL ECONOMY OF SLAVERY (2004).

10 Sanghera, supra note 1, at 11; Anderson, supra note 5, at 7.

11 ANDERSON, supra note 5, at 7.

12 In particular, see Sanghera, supra note I at 11.

13 ANDERSON, supra note 5; Kempadoo, supra note 8, at vii-xxxiv; Sanghera, supra note 1, at 3.

14 Kempadoo, supra note 8; Sanghera, supra note 1.

15 Elaine Pearson, HUMAN TRAFFIC, HUMAN RIGHTS: REDEFINING VICTIM PROTECTION, (2002); Ditmore, supra note 7; Siripom Skrobanek, Nattaya Janthakeero and Chutima Boonpakdi, THE TRAFFIC IN WOMEN: HUMAN REALITIES OF THE INTERNATIONAL SEX TRADE (1997).

16 KEMPADOO, supra note 8, at ix.

17 For a notable exception see Sanghera, supra note 1, at 11.

18 Kinsey Alden Dinan, United Nations Trafficking Protocol, in ENCYCLOPEDIA OF PROSTITUTION AND SEX WORK 512, 512-13 (Melissa Hope Ditmore ed., 2006).

19 Convention on the Rights of the Child, 1577 U.N.T.S. 3 (1989) [hereinafter UNCRC]. Article 34, for example, forbids anyone under the age of eighteen from becoming involved in any form of prostitution or pornography.

20 Sanghera, supra note 1.

21 Coalition Against Trafficking of Women, Child Trafficking, http://www.catwinternational.org/child-trafficking.php (last visited Aug. 9, 2010).

22 Reports presented by the Comm. of Enquiry into Traffic in Women and Children in the East, League of Nations Doc. C.849.M.393.1932.IV, 312 (1932).

23 Id.

24 Kempadoo, supra note 8, at xi.

25 HEATHER MONTGOMERY, MODERN BABYLON? PROSTITUTING CHILDREN IN THAILAND (2001).

26 Ryan Bishop & Lillian S. Robinson, NIGHT MARKET: SEXUAL CULTURES AND THE THAI ECONOMIC MIRACLE (1998); MONTGOMERY, supra note 25.

27 For examples on the similarities between these stories and those told one hundred years earlier during the white slavery panics of the 1880s, see Jo Doezema, Loose Women or Lost Women? The Re-emergence of the Myth of White Slavery in Contemporary Discourses of Trafficking in Women, 18 GENDER ISSUES 23, 23 (2000).