The Spanish Action Plan Against Trafficking in Women: Policies and Outcomes (2008–2011)
© Springer International Publishing Switzerland 2015
Maria João Guia (ed.)The Illegal Business of Human Trafficking10.1007/978-3-319-09441-0_66. The Spanish Action Plan Against Trafficking in Women: Policies and Outcomes (2008–2011)
(1)
University of A Coruña, A Coruña, Spain
Abstract
This contribution aims to analyse the design and implementation of policies against trafficking in Spain. In 2009, 63 % of the countries had adopted measures against trafficking in general, while 16 % had adopted measures to combat only certain elements contained in the Protocol to Prevent, Suppress and Punish Trafficking in Persons. The Spanish case is included in the latter group. In this chapter, we aim to explain the outcomes of the counter-trafficking policies drawing on feminist debates around sex trafficking and prostitution.
This paper is part of the Research Project “Medidas alternativas a la privación de libertad en el sistema español” (“Alternatives to imprisonment in Spain”), financed by the Government of Galicia (Ref. 10PXIB101082PR) and by the Government of Spain (DER2011-24030JURI).
6.1 Introduction
The subject of “trafficking in women” has received increased international attention in the last decades. Regardless of the human rights documents sanctioned during the first decades of the twentieth century and the recent ones, this subject continues to be addressed as a matter of controlling borders and sexuality.
This chapter aims to analyse the design and implementation of the policies against trafficking in Spain. According to the Executive summary of the Global Report on trafficking in persons of the United Nations Office on Drugs and Crime (UNODC) in 2009—containing information from 155 countries and territories on measures to combat trafficking—in November 2008, 63 % of the countries had adopted measures against trafficking in general, while 16 % had adopted measures to combat only certain elements contained in the Protocol to Prevent, Suppress and Punish Trafficking in Persons (the Protocol). The Spanish case is included in the latter group.
The three main policy dimensions to combat trafficking in human beings—prosecution, protection, and prevention—lead to the proposal of the Plan to combat trafficking in women for sexual exploitation (Ministerio de Igualdad 2010)1 in Spain. This 3-year plan was created by the former Ministry of equality in 2008 and continued under the auspices of the Ministry of Health, Social Policy and Equality.
The central point in this chapter is to analyse two interim results from the implementation of the Plan produced and published by the Secretary of State of Equality in order to develop accurate policies about sex trafficking. However, before evaluating the results, it would be useful to make some remarks on the problems of implementing these policies by Spain. Through this perspective, it is possible to understand how the relationship between women and control is transformed and institutionalised (Marugán and Vega 2002), from the construction of women as subject (Butler 2006, pp. 120 ff.).
Spanish policies are based on abolitionist stance that conflates prostitution with sexual exploitation, as stated in the report on the “Current situation of prostitution in Spain” (INFORME DE LA PONENCIA PARA EL ESTUDIO DE LA SITUACIÓN ACTUAL DE LA PROSTITUCIÓN EN ESPAÑA 2007). However, this perspective represents both epistemological and political obstacles in defining what trafficking actually means. Furthermore, this issue is framed with the myth of “white slavery” that becomes a metaphor for a number of fears and anxieties in the twenty-first century and still permeates politics today (Doezema 2000, 2010; Maqueda Abreu 2009a, b).
Indeed, during the discussions prior to the adoption of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children, supplementing the United Nations Convention against Transnational Organized Crime (2000), the consensus of a definition of the crime was focused on the issue of prostitution. Therefore, trafficking should be defined in a context where the repressive control of irregular migration, moral issues, and the defence of human rights converge. It would seem that trafficking in women has become a position marked by moral panic embedded with fears of foreigners, immigrants, criminals, terrorists, and globalisation. Within this framework, it is often difficult to disentangle these fears from actual concern over the fate of trafficked women themselves (Berman 2010).
The conflation of trafficking and prostitution also produces a genderisation of the Protocols, while the active subject in smuggling is a male; in the case of trafficking, we find women “victims” or children. This situation reveals how the territory of the body is controlled and governed while determining the subject capable of protection versus the subject capable of punishment.
In this definition, the key element is exploitation, which is described as covering 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. In other words, while trafficking is not confined to prostitution-related exploitation, sexual exploitation remains the paradigmatic understanding of trafficking. Yet the crucial word “exploitation” is not defined. As a result, issues of coercion or choice are left open to debate (Askola 2007).
The notion of female vulnerability has been tackled in fervent feminist debates within various disciplines. Feminist and activists have lobbied governments to direct resources, laws, and social policy towards tackling violence and discrimination against women. More recently, feminist activists and scholars have attempted to move beyond the binary opposition between equality/discrimination in feminist theory in order to incorporate a more nuanced understanding of vulnerability. However, this perspective has had mixed outcomes. On one hand, in all European Member States, gender mainstreaming has become an important issue through a variety of mechanisms such as Treaty provisions and Directives concerning access to employment, equal pay, and maternity protection. On the other hand, within the human trafficking agenda, there is a pervasive language of vulnerability, which provides unique insights into how the government invokes discourses of female vulnerability (FitzGerald 2011, p. 158). As a result, the concept of vulnerability denies autonomy to migrant women and affects sex workers with even more violence.2
In this regard, the Council of Europe in its Resolution passed on May 19, 2000 (OJ C 59, 23.2.2001, p. 307), defines the vulnerability in the context of trafficking as “the result of coercion and an irregular administrative situation”. This definition, which identified vulnerability with the lack of rights of irregular migrants, assimilated the behaviours of those who illegally cross the border to those who are subject to violation of human rights in situations of exploitation. Even though they were sanctioned in separate Protocols, the confusion between the smuggling of migrants and trafficking was equated in the concept of vulnerability in the Spanish Criminal Code until 2010 (Maqueda Abreu 2009b, pp. 1250 ff.).
6.2 Politics and Prostitution
The Spanish policy on prostitution belongs to the abolitionist model. In fact, outdoor and indoor prostitutions are neither prohibited nor regulated by the State.
With the introduction of the Criminal Code in 1995, much of the behaviour connected with prostitution was decriminalised. Although legislative attention focused more on exploitation rather than the internal market of prostitution, this situation would change in 1999.
6.2.1 Prostitution-Related Crimes and the Offence of THB
The Criminal Code prohibits the inducement of someone to enter into or continue to engage in prostitution if the inducement is by coercion, exploitation of a situation of hardship, or abuse of a position of superiority. The punishment is a fine of 12–24 months and imprisonment of 2–4 years (Article 188.1). Article 187.1 also penalises anyone who induces, promotes, fosters, or facilitates the prostitution of a minor. Punishment is imprisonment of 1–4 years and a fine. However, criminal responses to the phenomena of trafficking in human beings for the purpose of sexual exploitation have changed in recent years. In 2000, the Penal Code included a general offence of smuggling in human beings (Article 318 bis) and a specific offence of trafficking of human beings for the purpose of sexual exploitation (Article 188.2). A reform enacted on September 29, 2003, integrates the two offences in the same article (318 bis). Sex trafficking applied only when the person was an illegal migrant. In 2003, a new paragraph was included that punishes the sexual exploitation in the realm of smuggling of migrants (Article 318 bis 2).
In 2010 (LO 5/2010, 22/6, reform of the Criminal Code), a new reform incorporates Art. 177 bis, which incriminates the offence of trafficking in human beings as a consequence of the commitments made in international documents and the EU. So far, Article 318 bis became obsolete because it dealt with two different criminological realities jointly and with great technical imprecision. However, this problem largely persists because article 318 bis is still in force and remains unmodified with this reform.
6.2.2 The Plan Against Sex Trafficking (2008–2012)
The Plan is organised into three chapters. The first chapter defines trafficking from the conventions and agreements in force. The second chapter of the Action Plan describes the methodology. Lastly, the third chapter points out the five areas of intervention: measures of awareness, prevention and investigation, education and training, assistance and protection to victims (legislative and procedural), and measures of cooperation and coordination.
Furthermore, the plan is guided by three principles. First is the need to adopt a gender perspective whereby women are more likely to become victims because of the lack of education and opportunities. The second principle holds that human trafficking cannot be disengaged from prostitution, while the third focuses on the transnational character of the phenomenon. The last principle holds that the crime of trafficking requires effective police and judicial action. Although the document emphasises the importance of not confusing trafficking in human beings with the smuggling of migrants, it states “both trafficking and smuggling occur through causes established by irregular migration networks”. The chapter on methodology emphasises the lack of reliable data for the integral Plan. In this regard, it affirms that “Trafficking in women and children exists because the prostitution of a large percentage of female migrants is in the hands of networks”. In this sense, the former Minister Bibiana Aído, in an interview published on July 18, 2010, in El País, refers to the Plan of the Government as the first time where there is an instrument to fight against sexual exploitation. She continues claiming that migrant women represent 90 % of prostitutes, comparing the situation of these women to slavery. However, these claims contradict UN data estimating that only one in seven women are victims of trafficking. Lastly, when the journalist asked a question regarding the regulation of sex work, she replied that it would not be processed as it affects only 10 % of women and therefore does not require a priority intervention.
Neither these figures nor the Plan is supported by any statistics, studies, or previous research on this phenomenon. The absence of data—while partly justified by the difficulty of quantifying a very complex phenomenon recognised by the UN, IMO, etc.—in the case of the Plan is due to what scholars have called the “strategic figures”, i.e. the analysis of the real problems is replaced by abstractions, which maintain the stigmatisation. By assuming that forced prostitution refuses to submit to testing, abolitionism insists on the lack of freedom. No one in their right mind would opt for the exercise of prostitution.
6.2.3 Problematic Data
The contemporary obstacles presented to the implementation of a strong anti-trafficking regime are further aggravated by the ambiguous analysis of this area (Munro 2005). Statistics vary widely between the various agencies involved (police, immigration, sex workers and abolitionists, human rights activists, and social service providers), reflecting both a pervasive lack of reliable intelligence and a potentially divisive conflict of interests among relevant stakeholders.
While there are grounds for suggesting that the extent of sex trafficking in the EU may be overestimated, the equation of sex trafficking and prostitution has taken an axiomatic status in policy debates. This conflation is especially significant given the current anxieties about the perceived porosity of national boundaries within the EU (Hubbard et al. 2008, p. 139). Consequently, trafficking counter-policies are framed not so much as a problem of morality but one of security, with the putative re-emergence of the ‘white slave trade’ triggering multiple initiatives intended to protect the sovereign spaces of the EU as much as the sovereign bodies of women (Aradau 2004, p. 253). For instance, the European Parliament has prioritised police cooperation to halt trafficking, encouraging the “harmonization of judicial and criminal laws” to prevent “one of the most dangerous threats in the Member States of the EU”. EU-sponsored programmes (including STOP I & II, 1996–2002; DAPHNE I & II, 2000–2008; and Stockholm Programme 2010–2014) collate information on sexual trafficking to encourage cooperation between EUROPOL and European police forces, while the EU Framework Decision on combating trafficking 2002/629/JHA calls on member states to develop “effective, proportionate and dissuasive” policies for traffickers, recently replaced by the Directive 2011/36/EU of the European Parliament and of the Council of April 5, 2011, on the prevention of and the fight against the trafficking in human beings and the protection of victims.
The Spanish Plan reveals how the protection of vulnerable women involves a system of race and gender profiling that reinforces stereotypes of helpless and naïve women who are allegedly unaware of the vagaries of life in the West (Kempadoo and Doezema 1998). The Plan against Trafficking states: “In order to ensure the prompt and accurate identification of victims of trafficking we have developed a best practice toolkit for front line immigration, police officers and other professionals who may come into contact with victims”. Moreover, the ongoing battle for ascendancy among competing conceptualisations has had tangible impacts on the strategies deployed to address the occurrence of trafficking and upon the balance between repressive and empowering measures afforded to the parties involved (Savona and Stefanizzi 2007). Different agencies and stakeholders, motivated by the dictates of their respective institutional or campaign agendas, have tended to adopt variable combinations of these contextual frameworks.