Trafficked? AIDS, Criminal Law and the Politics of Measurement
University of Miami Law Review, Vol. 70, No. 1, pp. 96-251 (Fall 2015)
Northeastern University School of Law Research Paper No. 250-2015
57 Pages Posted: 5 Jan 2016
Date Written: January 4, 2016
Since early in the HIV epidemic, epidemiologists identified individuals who transact sex as a high-risk group for contracting HIV. Where the issue of transacting sex has been framed as sex work, harm-reduction advocates and scholars call for decriminalization as a primary legal solution to address HIV. Where the issue is defined as trafficking, advocates known as abolitionists argue instead for the criminalization of the purchase of sex.
Global health governance institutions are porous to these competing ideas and ideologies. This article first historicizes the contestation between harm-reduction and abolition in global governance on health. The paper then turns to a new arena in which these battles are playing out: measurement and indicators. The contested political environment of the sex work and trafficking debates has resulted in numerous calls to accurately measure “the problem” so that law and policy makers can identify appropriate legal solutions. Rather than being an objective technical tool for effective policymaking, however, this article argues that data and indicators serve as a site of politics and governance. Building on literature from law and sociology, the author analyzes the political battles being waged through the data and indicators on trafficking that reproduce rather than resolve the larger debate on sex work and trafficking. Indicators become instrumental in providing the justification for the competing legal positions. In other words, how people and issues are counted and defined is instrumental for how laws and policy recommendations are made. Finally, in keeping with other critics of the over-emphasis on criminal solutions to trafficking and sex work, the author argues that the ongoing legitimation of criminalization projects vis-à-vis indicators comes at a cost to structural solutions to address the underlying factors that lead to violence and exploitation associated with trafficking or sex work.
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