Thailand Law Journal 2012 Fall Issue 1 Volume 15

Defining Child Trafficking & Child Prostitution: The Case of Thailand

By Heather Montgomery

1. Introduction

Child trafficking is a poorly misunderstood and badly defined phenomenon. Commentators and activists frequently use the phrase "child trafficking" synonymously and interchangeably with child prostitution and sexual exploitation, and even link child trafficking with sex tourism, even though the connection between these two terms is sometimes tenuous.¹ Indeed, although children may migrate for a number of reasons and can be exposed to a variety of hazards, child trafficking has come to be seen almost entirely in the context of sexual exploitation, causing prostitution to become the main cause for international concern and advocacy. Given the horror that child trafficking for sexual purposes evokes, this might not be surprising. Yet, debate about the meaning of the term is not simply academic pedantry; instead, it is vitally important to understanding the extent and nature of the problem and how to formulate meaningful policy decisions.

This article will address the various uses of the term "child trafficking" before carefully delineating the various forms of child prostitution in Thailand. These forms of prostitution range from forcing girls (and less commonly boys) from neighboring countries and local hill tribes into prostitution, becoming "debt bonded" into brothels, to living on the streets with their peers, and voluntarily selling sex when the opportunity arises. Furthermore, child prostitution may also exist as a family trade where
children live with their parents and sell sex as part of the household economy. An ethnographic case study explores this final type of child prostitution and reveals that many child prostitutes are not trafficked, but show some willingness to participate in selling sex. In this instance, prostitution may be the best choice available for individual children who believe it to be morally acceptable.

Such a conclusion raises many uncomfortable issues and ethical dilemmas. However, by making such a statement, I am not attempting to justify child prostitution or to claim it is a good choice for children. Based on the ethnographic evidence of my own work, I have found that there are various forms of child prostitution, not all of which involve trafficking. Therefore, there is no blanket solution to the problem, and different forms of prostitution require very different methods and ideologies of
intervention. Attempts to tackle the problem of child prostitution through international trafficking legislation, while important and well-meaning, have not always been successful at a grassroots level and do not always reflect the children's own priorities and stated needs.

II. DEFINING THE PROBLEM

A. The Official InternationalD efinition of Trafficking

In theory, the term trafficking ought to be easy to discuss. A clear international definition was agreed upon and set out in the UN Protocol to Prevent, Suppress and Punish Trafficking, Especially Women and Children² (also known as the "Palermo Protocol" and referred to throughout this article simply as "Protocol"). Through the ratification of the Protocol, there exists significant international agreement that trafficking is a serious form of organized crime that governments need to combat.³ The Protocol states:
(a) "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 payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation;
Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered
"trafficking in persons" even if this does not involve any of the means set forth in subparagraph (a) of this article;
(d) "Child" shall mean any person under eighteen years of age.⁴

B. Criticisms of the InternationalD efinition

Despite this apparent straightforward description of trafficking, the Protocol has caused great controversy, especially over issues of consent. The heart of the debate is whether or not sex work can ever be entered into voluntarily, and if so, whether it can still be considered "trafficking." Some activists, such as those from the Coalition Against Trafficking in Women (CATW), claim that all prostitution is involuntary, and therefore, the terms "trafficking" and "prostitution" can be used synonymously. However, others have argued that trafficking is a more complex phenomenon that does not necessarily equate to prostitution.⁵ Academics and activists who take the latter position argue that the Protocol overlooks the connections between legal and illegal forms of migration, viewing the latter as criminal and the former as acceptable, even though a likely overlap exists between
the two.⁶

Since the Protocol came into force, the debate has continued. Some commentators continue to insist that trafficking is a criminal activity with recognizable victims (usually women and children) and perpetrators (usually men).⁷ Kamala Kempadoo points out that the gender stereotyping in this view of trafficking draws on notions of women's and children's innate sexual purity and passivity and contrasts them with men's ability to act and to make active choices about migration. She argues:

Women and children by definition are trafficked-kidnapped, transported against their will over borders, and held in slavery-like conditions-due to their presumed innocence, purity, and inability to take action on their own behalf, while it is men who are thought to actively seek to be smuggled, and hence are viewed as implicated subjects.⁸

1. Jyoti Sanghera, Unpacking the Trafficking Discourse, in TRAFFICKING AND PROSTITUTION RECONSIDERED: NEW PERSPECTIVES ON MIGRATION, SEX WORK, AND HUMAN RIGHTS, 3-24 (Kamala Kempadoo, Jyoti Sanghera & Bandana Pattanaik, eds. 2005) [hereinafter Sanghera].

2. G.A. Res. 55/25, Annex II, U.N. Doc. A/Res/55/25 (Jan. 8, 2001), [hereinafter Palermo Protocol]. This Protocol supplemented the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, Mar. 21, 1950, 96 U.N.T.S. 271, and gave added protections to those discussed in the Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13.

3. Palermo Protocol, supra note 2, at Art. 2. According to the United Nations Office on Drugs and Crime, as of 2010, 110 States have signed and ratified the Protocol although conviction rates remain very low and few victims are helped or even identified. Human Trafficking, United Nations Office of Drugs and Crime http://www.unodc.org/unodc/en/human-trafficking/what-is-humantrafficking.html?ref-menuside (last visited March 3, 2011).

4. G.A. Res. 55/25, Annex II, Article III, U.N. Doc. A/Res/55/25 (Jan. 8, 2001).

5. Jo Doezema, Who Gets to Choose? Coercion, Consent, and the UN Trafficking Protocol, 10 GENDER & DEV. 20, 20-21 (Mar. 2002), available at http://www.jstor.org/sta ble/4030678; see also BRIDGET ANDERSON & JULIA O'CONNELL-DAVIDSON, TRAFFICKING-A DEMAND LED PROBLEM? 8-9 (2002) [hereinafter ANDERSON].

6. ANDERSON, supra note 5, at 7.

7. See Melissa Ditmore, Trafficking in Lives: How Ideology Shapes Policy, in TRAFFICKING AND PROSTITUTION RECONSIDERED: NEW PERSPECTIVES ON MIGRATION, SEX WORK, AND HUMAN RIGHTS 107, 109 (Kamala Kempadoo, Jyoti Sanghera& Bandana Pattanaik eds., 2005) [hereinafter Ditmore].

8. Kamala Kempadoo, From Moral Panic to Global Justice: Changing Perspectives on Trafficking, in TRAFFICKING AND PROSTITUTION RECONSIDERED: NEW PERSPECTIVES ON MIGRATION, SEX WORK, AND HUMAN RIGHTS vii, xxiii (Kamala Kempadoo, Jyoti Sanghera & Bandana Pattanaik eds., 2005) [hereinafter Kempadoo].