In May 2003, law enforcement officers raided a brothel in Chiang Mai, the capital of the northern region of Thailand and the regional center for the many indigenous peoples or hill tribes that populate the surrounding mountains. They conducted this raid at the behest of a coalition of Thai non-governmental organizations and an American evangelical Christian organization. The American organization, with funding from the U.S. government and in conjunction with the Thai non-governmental organizations, was dedicated to investigating and reporting brothels with children inside to the authorities, and tried to persuade the police to shut down such locales. The particular brothel raided in this story was a brothel like many others in the country, filled with ethnically Shan women from Burma. Most of the women were of the age of majority, but while accounts vary, some organizations asserted that there were teenagers working in the brothel as well. How these teenagers reached the brothel is unclear; the organizations claiming that teenage girls were there also asserted that the girls’ presence could not be voluntary due to their age and that the girls were victims of human trafficking.

The coalition of organizations effected what they termed a “rescue” of the women in the brothel because of the believed presence of children. What followed was a human rights debacle. Twenty-eight women and girls, most of whom were, by all accounts, adults, were involuntarily detained beyond the period of time that victims of trafficking may be confined under Thai law. They were not arrested or charged with crimes, but detained, according to the authorities, because they had been rescued from a situation of human trafficking. They were deprived of access to their belongings and saved earnings, which were locked inside the inaccessible brothel under police control; they never regained ownership of these possessions. After a lengthy period of time, the government deported many of these women to Burma. All of these actions, which the women experienced as both harmful and alienating, occurred under the guise of rescuing them from the brothel in which they worked.

According to social services workers who interviewed four women who escaped from the brothel as the police arrived, all of the women were ethnic Shan from Burma and were at least nineteen years of age at the time of the raid. Prior to immigrating to Thailand, their status as members of the Burmese Shan indigenous group rendered these women subject to summary detention and rape at any time at the hands of officers of the Burmese junta. Faced with the option of abuse by the authorities in a region of Burma overwhelmed by poverty, many Shan women chose, and continue to choose, to cross the mountains that demarcate the ThaiBurma border and move to a Thai city to work in a brothel. This choice has a certain logic, as forced labor, forced relocations, and food shortages remain an endemic problem in Burma.11 For many, work in a Thai brothel presented the opportunity to escape the repression of the Burmese junta and to send adequate money home in order to support families, educate children, and maintain households. From the perspective of these women, that they at times paid people to facilitate their passage to Thailand was merely incidental.

Further, the women who escaped the brothel prior to the raid claimed that they, like the women “rescued” in this particular scenario, and like many other Shan sex workers in Thailand, worked in the brothel of their own volition. According to these women, they were free to come and go as they liked; they were not subject to physical restraint in any way. They were not in debt bondage in the traditional sense of the phrase, although some did at times take pay advances from the brothel manager to travel home and back; they would repay such advances with a portion of their earnings over time, much like a loan against future paychecks that some workplaces offer in the United States. Yet from the perspective of the American evangelical organization doing this work, the women in the brothel, particularly the minors, needed to be rescued from the brothel. According to the IJM employee with whom I spoke during the summer following the raid, as all of the women had traveled across borders and left their communities to work in the sex industry, they qualified as exploited women in need of assistance, even when they personally denied that they experienced harm in the brothels. That they may have paid others to facilitate their migration was presented as further evidence of their exploitation.

Nearly every anti-trafficking organization in Thailand had a different perspective on this situation. The explicitly feminist organizations unanimously supported the women, organizing letter-writing campaigns decrying the treatment of these detained sex workers and writing scathing white papers to bring public attention to the situation. The Western evangelical organization that initiated the raid on the basis of their own brothel research claimed that they had orchestrated the rescue because two or three children were trapped against their will in the brothel. It was only in my interview of a Thai-European man who worked extensively in anti-trafficking efforts that I came to appreciate the complexity of the situation surrounding this particular raid. He identified the myriad perspectives from which individuals and organizations perceived trafficking for sexual purposes and tried, in the context of his work, to maintain good working rapport with all of the local groups. In listening to him describe this working style, it became apparent to me that the raid and its aftermath crystallized the difficulty he encountered in working with organizations that shared no common ground in their approaches to trafficking. Although his approach was no more objectively correct than the others, his appreciation of the conflict helped frame for me the questions that animate this Article.

I do not claim to know all of the nuances of this particular story, and I do not narrate it as authoritative. But the fallout from this raid has haunted me since that time because it illustrates and exemplifies the ongoing ideological conflict that surrounds the trafficking of women for sexual purposes. A lack of shared dialogue among organizations typifies the anti-trafficking movement, in Thailand and elsewhere. Rather than coordinating efforts by reaching consensus on at least some shared goals, these groups constantly argued among themselves about the most basic of concerns and, therefore, could not even broach harder topics. This particular raid highlighted the extent of disagreement over what could be proper interventions and, even more problematically, over who required rescue. The organizations never reached agreement on the deeper issues such as the dilemma of brothels, when or whether the rescue of adult women is appropriate, or the essential acceptability of sex work. This raid demonstrated that the organizations simply could not agree on how to engage with the problem, much less on any shared ideological premises from which to coordinate their efforts. In the absence of coordinated anti-trafficking efforts, these organizations wasted enormous amounts of time infighting rather than providing direct assistance to the myriad trafficked and voluntary sex workers in Thailand who might have benefited from social services aid.

From a theoretical perspective, this Thai scenario displays the ideological chasm that divides anti-trafficking organizations. Whereas in this particular scenario the abolitionist organization was evangelical Christian, a number of feminist groups also share abolitionist values. Although their first principles differ dramatically, both kinds of abolitionist organizations hold in common a fundamental instinct that consent to the sale of sexual labor is problematic. Beginning from this premise, feminist abolitionist organizations articulate a gender-based critique of the social conditions that create the economic desperation underlying women’s choice to engage in sexual labor. Further, they advocate the ultimate abolition of all forms of sexual labor as the solution to the coercive choice of engagement in sex work. Yet as they cannot fully explain the private choices that individual women make in the context of conditions of social oppression and economic desperation, their account offers a narrow critique focused solely on the sexuality inherent in the labor, without acknowledging the other aspects of women’s lives that shaped their choices to perform sexual labor.

The sex-worker-rights organizations examined the raid from the opposite perspective. Beginning with an initial reliance on the concept of self-determination, these organizations asserted that the women in the brothel had chosen to be there and that the raid’s forcible removal of them was a fundamentally unacceptable abridgement of their autonomy. As the women worked of their own volition, were free to stay or leave, and were not in debt bondage, the conditions of their work were consistent with their autonomy. Further, the sex-worker-rights organizations emphasized the particularized context of these women’s choices. Faced with the option of sexual abuse and hunger at the hands of the Burmese junta, these organizations asserted that the choice to live and work in a brothel was a rational decision that individuals made based on the circumstances of their lives in Burma. However, by framing brothel work as a series of individual decisions, these groups overlooked the social influences that constrained the range of options available to women who chose to engage in sexual labor.

These practical, activist positions on trafficking share important connections to the strains of feminist theory that provide their underlying rationales. The abolitionist movement is closely tied to the dominance feminism school of thought, paradigmatically defined by the work of Catharine MacKinnon.  In the context of sex work generally and trafficking specifically, Kathleen Barry and others have articulated the nuances of the application of the dominance feminism model to this issue. Other feminist authors, notably Jo Doezema and Kamala Kempadoo, discuss the sex-worker-rights position, which possesses two sets of roots. First, it arises in significant part from a liberal vision of trafficking and its critique of dominance feminist theory. Second, in important and largely unstated ways, it draws on poststructuralist feminism’s rejection of gender essentialism. Martha Nussbaum also offers an explicitly liberal vision of trafficking and sex work from a more specifically philosophical position.

The weaknesses and strengths of these strains of feminist theory closely parallel the problems articulated above regarding approaches to sex trafficking. The dominance school of feminism brilliantly offers a scathing critique of gender and sexualized privilege in society, and at times extends the critique equally well to the arenas of first-world privilege. Yet dominance feminism provides this critique in such a universalized way that it fails to account for the individual circumstances of particular women’s lives. In short, dominance feminism extends its critique too far, compulsorily drawing all women into its purview, and offering abolition as its singular solution predicated solely on a stunted view of trafficking. Feminists focused on sex-worker rights, in contrast, insightfully leverage liberal thought to appreciate the condition of individual women’s lives and place women’s decisions within a personal context; they look to poststructuralism to help construct a feminism cognizant of individual difference. But they neglect the broader social context in which individual women make private life choices, which is a crucial element of a feminist social critique.

This Article articulates a new feminist approach to the trafficking of women for sexual purposes. Drawing on existing feminist scholarship that both appreciates the constrained autonomy within which individuals make decisions and proffers a more generalized condemnation of patriarchal social structures, this project enlists both dominance and liberal feminism to stake out a middle ground—a third way— between the poles of victimhood and agency. Rather than focusing on the ideological battle over women’s bodies as represented in the trafficking and sex work debates, this Article offers a new model that properly conceptualizes trafficked women and voluntary transnational sex workers and highlights preventative and interventionist approaches consistent with this vision of who these women are. While focusing on trafficking for sex work because of the generative force of feminist legal theory, these interventions are equally useful in addressing trafficking into any labor sector.32

Part I lays out the dominance feminist approach to sex work in general, and trafficking specifically, offering a critique of the weaknesses of this approach. This Part simultaneously identifies the strands of this line of theorizing that might be salvaged to offer an alternative to the existing bifurcated approach to trafficking. Part II similarly articulates the main arguments of sex-worker-rights advocates, contextualized in their liberal theoretical origins. This Part attends to the role of poststructuralism in shaping a growing movement of theorists and activists who attend to the particularity of the situations of women of the global South, rejecting a monolithic understanding of “woman,” even in discussions of trafficking for sexual purposes. It offers a critical assessment of this theoretical model while identifying the elements of this approach that are most promising for a new articulation of how to do feminist law and policy making in a manner that critiques societies but continues to properly apprehend women as individuals.

Part III articulates a new third-way approach to trafficking by reconciling the salvageable strands of the above two models and suggesting the basic tenets of a new public policy approach that grows from third-way feminism. Finally, it concludes by showing how these tenets can generate specific public policies that enact this set of feminist principles in interventions in the lives of trafficked women.

Part IV connects this third-way feminist theory and policy to scholarship on the capabilities approach to human development, observing that this kind of third-way feminist policy intervention resonates deeply with the effective and original approach of Amartya Sen and Martha Nussbaum on how to properly conceptualize development work. This Part concludes by noting how development and human rights law that properly apprehends the intended beneficiary can generate meaningful, lasting change in the lives of women.

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