So in every law, there is a definitions section at the beginning and then a section that defines the criminal code. The definitions section doesn’t establish crimes – the criminal code does. For example, the TVPA also lists a definition for “nonhumanitarian, nontrade-related foreign assistance” and “minimum standards for the elimination of trafficking,” and neither of those things are made illegal by the TVPA. Two other definitions that the TVPA includes without criminalizing are:
- Commercial sex act, which the law defines as “any sex act on account of which anything of value is given to or received by any person.”
- Sex trafficking, which the law defines as “the recruitment, harboring, transportation, provision, or obtaining of a person for the purposes of a commercial sex act.”
As a side note, defining any actions that assist commercial sex or are as a client of commercial sex as “sex trafficking” was a compromise intentionally inserted to appease anti-prostitution activists, who wanted all commercial sex to be treated as “human trafficking” or “slavery.” Ultimately, the final bill’s language did not include all commercial sex in the criminal code as “human trafficking” due to strong opposition from human rights activists. The language is thus confusing (because it was designed to appease two opposing groups) but the intent was clearly to avoid including sex work in the crime of “human trafficking” in the absence of force, fraud, or coercion. The book Responding to Human Trafficking by Alicia W. Peters offers an insightful and accessible overview of how the law came to be.
She calls the definition of sex trafficking above the “non-operational” definition – just like all the definitions in that section are non-operational except to the extent that they are included in the criminal code later in the law. Those definitions that set the criminal code are the “operational” definitions of human trafficking.
In the section of non-operational definitions, “severe forms of trafficking in persons” is defined as:
- Sex trafficking “in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or”
- “The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.”
And then later in the criminal statute, “severe forms of trafficking in persons” is what is considered human trafficking for legal purposes – the “operational” definition.
Because the standard of evidence and criminal sentencing for human trafficking in commercial sex and other forms of can be different, people often refer to “sex trafficking” and “labor trafficking” to differentiate where the “severe form” happened.* This can lead to confusion when people assume (or are told) that “all sex trafficking is human trafficking.” But the law says that it commercial sex is not part of the criminal definition of human trafficking unless it involves force, fraud, coercion, or exploitation of a minor.
Sex work is not explicitly defined in U.S. law (though definitions of “prostitution” are largely left up to the states), in large part because of active campaigning from anti-sex work activists to frame the term as offensive and deter its use at the federal level, but states may define commercial sex and any associated legal, criminal, or decriminalized frameworks at the state level.
Learn more in the other parts of this series, which will be posted on Freedom Network USA’s blog and linked here once available.
Part Two: How Conflating Sex Work and Sex Trafficking Harms Trafficking Survivors
Part Three: How Conflating Sex Work and Sex Trafficking Harms Sex Workers
* This rigid distinction between “sex trafficking” and “labor trafficking” is less common in global contexts except where it has been exported by U.S.-based activists.