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Suffering at the Margins: Applying Disability Critical Race Studies to Trafficking in the United States

This article was originally published at the Columbia Journal of Gender and Law and can be found at this link: https://journals.library.columbia.edu/index.php/cjgl/article/view/9065 Abstract Human trafficking is a scourge in which perpetrators victimize the most vulnerable and marginalized members of a population to sell their bodies or sell their labor for profit. This Note explores human trafficking in the United States through Disability Critical Race Studies (DisCrit). First, the Note offers background on trafficking and applicable federal law. Not only does trafficking disable people, but people with preexisting disabilities are especially at risk for trafficking. Next, the Note shows that trafficking law follows a law-and-order framework: a framework that prioritizes prosecuting traffickers and doles out penal remedies. This framework and its intimate ties with the criminal justice system is a dual-edged sword. It helps countless survivors yet retraumatizes some marginalized survivors. Finally, the Note introduces DisCrit, justifies its use for anti-trafficking advocacy, and applies the DisCrit framework. By looking at trafficking law through DisCrit, one sees that trafficking law must work with—not against—survivors to end human suffering.

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Suggested Citation

Rein, R. (2022). Suffering at the Margins: Applying Disability Critical Race Studies to Trafficking in the United States. Columbia Journal of Gender and Law, 42(2), 183–256. https://doi.org/10.52214/cjgl.v42i2.9065


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Response to: Suffering At The Margins: Applying Disability Critical Race Studies To Human Trafficking In The United States.
Rein, R. (2022). Suffering at the Margins: Applying Disability Critical Race Studies to Trafficking in the United States. Columbia Journal of Gender and Law, 42(2), 183–256. https://doi.org/10.52214/cjgl.v42i2.9065
Todres, Jonathan, Law, Otherness, and Human Trafficking (March 18, 2009). Santa Clara Law Review, Vol. 49, No. 3, pp. 605-672, 2009, Georgia State University College of Law, Legal Studies Research Paper No. 2009-07, Available at SSRN: https://ssrn.com/abstract=1362542
Raymond, Janice G., and Hughes, Donna M. International and Domestic Trends in Sex Trafficking of Women in the United States, 1999-2000. [distributor], 2006-03-30. https://doi.org/10.3886/ICPSR03438.v1
The recent article by Rachel Rein deals specifically with applying a Critical Race Theory lens, with an added filter of Disability, to the topic of victims and survivors of human trafficking. The assumption that Rein holds throughout the paper is clear from the beginning. The assumption is racism and ableism is to blame. Right at the start of the paper she makes the argument that one victim of trafficking she intends to discuss doesn’t fit the expected picture of such a woman. Rein claims that the public’s notion of what a trafficking survivor looks like is a white woman who has been abducted from the street by a stranger (2022). She tries to validate this claim by referencing Jonathan Todres work titled, Law, Otherness, and Human Trafficking. In the footnote she has included, she has a quote from his work. However, the quote is referring to traffickers, not the trafficked woman. Further, why is Rein assuming that all of us picture a white woman being abducted on the street? 
     The reason she makes this assumption is for two reasons. The first is the fact that Rein has applied a critical theory lens to the issue. Second, Todres, whom she is referencing, is also making that assumption. Todres states in the opening of his study that he is specifically looking at the issue of human trafficking through the lens of feminist legal scholarship, postcolonial feminism, critical race theory, and various other critical legal studies (2009). Therein lies the problem with the argument presented by Todres. Critical theories start with the assumption that racism, or whatever issue the theory is considering, is present at all times in every context and in all places, it is just a matter of finding it. One of the clearest errors that critical theories make is starting with the conclusion, the idea that racism is always present and active, and then working backward to prove the conclusion. Yet Todres takes that same backward lens, looks at human trafficking, and then claims that “othering” the victims and survivors is the problem. This is the conclusion he must start with because the lens he uses demands he starts with that conclusion before even beginning his work. Rein makes the same mistake by concluding that race and ableism are to blame for the failings of anti-trafficking efforts, yet the source she references is again one using a critical race theory lens. Of course, that source will conclude that race is the problem. This will of course lead Rein to conclude that race is the problem. 
     Todres references a study by the Department of Justice to validate his claim that most women trafficked are not white. The study he references says “conditions facilitating recruitment of women included economic desperation and disadvantage, the lack of a sustainable income, and poverty” (Raymond, Hughes, 2000). One might make the argument that populations that are at risk of such factors might be disproportionally not white. However, this does not mean that the traffickers are targeting women based on racism. It should be noted that while this study from the DOJ does include data derived from interviews of individuals who have first-hand experience in the trafficking world, it also includes data pulled from stories written on the internet by men about their experiences with sex trafficking. This type of data, being completely unverifiable and subjective, should not be used as the basis of a major study. The data provided by professionals and individuals operating in the trafficking world, while still subjective, are at least verifiable to some degree. 
     The sources for the data in the DOJ study come from 3 regional partners in the U.S. with one in Minneapolis focusing specifically on serving women of color (Raymond, Hughes, 2000). It is not clear in the study how the data was considered. However, including a data pool already selected for based on race seems to introduce confounding factors. In the men's writings that were examined, 66 percent of the entries mentioned the race of the women (Raymond, Hughes, 2000). These writings were focused on the areas of New York City, San Francisco, and Minneapolis (Raymond, Hughes, 2000). Of that 66 percent, black women only outnumbered white women in New York (30 percent black, 21 percent white) (Raymond, Hughes, 2000). In San Francisco, white women outnumbered black women (21 percent white, 18 percent black), and in Minneapolis it was equal (Raymond, Hughes, 2000). Asian women were the highest population in San Francisco (Raymond, Hughes, 2000). There was no mention of women from African countries in any of the writings. Further, the DOJ study focused mainly on women trafficked into the United States. How can systemic racism be the cause of women of color being at risk when they weren’t even the highest demographic in 2 of the 3 areas examined?
     The DOJ study states that around military bases there are “inordinate numbers of Asian women” being exploited and trafficked (Raymond, Hughes, 2000). Rein claims that black children and women are at risk of trafficking due to systemic racism. Yet, I don’t see any argument in Rein’s work that the Asian women referenced in the original study by the DOJ are victims of racism. Why is this demographic seemingly left out? The study done by the DOJ states that the men who buy women for prostitution come from all ages and socio-economic classes (Raymond, Hughes, 2000). Many of the brothels referenced aimed specifically at selling services to immigrant or migrant worker communities. How is it that in Rein's view, systemic racism is the main cause for exploiting people of color, and in Todres' view the problem is we are “othering” the victims, yet the main target of brothels referenced by the DOJ served immigrant and migrant workers? 
     The women interviewees that participated in the DOJ study were asked about the legalization of prostitution. This topic is often debated and the trope that “sex work is work” is thrown around. This kind of blind affirmation ignores the fact that, in 2001, fifty percent of the international women interviewed said prostitution should not be legalized and that they would not recommend it to any other women (Raymond, Hughes, 2000). Further, sixty-seven percent of U.S. women interviewed said it should not be legalized and ninety-four percent said they would not recommend it (Raymond, Hughes, 2000).  I understand that Rein is focusing on how the legal system needs to change and how services need to improve to support survivors. However, I am surprised that the main issue isn’t being addressed; the demand for sex workers even when nearly all the ones interviewed said don’t do it.
     Todres' argument fails to consider the broader picture. Victims have equal protection, and perpetrators face equal prosecution risk, under the law without regard to race or gender. That’s not to say that the subjective applicators of the law, judges, apply the law equally every single time. Of course this isn’t the case. There is some truth to the problems in the subjective interpretation of judges.  However, it does mean that we have encoded in the law protection against tailored treatment based on innate variables. So that is a good place to start. The error that Todres and Rein's make is starting with the conclusion that it is racism that is at fault for disparate circumstances among victims and survivors. Yet how do they prove that? The short answer is they don’t. The only way you could prove that racism was the sole cause for the variability, devoid of outright confessions from the judges, is to have 2 women with the same circumstances but different races get different outcomes. But we don’t have that. Even when Rein claims that if we control for other common variables, it still comes down to race, that doesn’t account for every single ruling. It also doesn’t prove racism on the part of the judge. That is an inference made by Rein. Numerous other factors are at play affecting the outcomes of these women, or the preconditions that led to them being trafficked in the first place. Not being honest about those factors fails the victims and survivors. 
     Rein lists the seven tenets of the DisCrit lens she is applying and the first one is the assumption that race is at play even if it is invisible (Rein, 2022). While that might be the most intellectually reckless part, it is by far not the most unsettling. Tenet 6 claims that whiteness and ability are “property” (Rein, 2022). Why doesn’t it view any other race as “property”? Tenet 7 “requires activism and supports all forms of resistance” (Rein, 2022). All forms? What about violent resistance? Why does it require activism? Rein makes a troubling assumption in her paper when she argues, without proof, that a white woman survivor has it better than a black woman because she doesn’t have to deal with racism (Rein, 2022). Why have you assumed racism will impact a black woman? Why do you assume that the impact of the supposed racism will be so much worse than what the white woman will deal with from some other vector? The answer is the critical theory lens. Rein has assumed race is the problem and does not feel the need to validate that claim.
     The most important first step to solving a problem is precision in identifying the problem. Precision is sacrificed if you begin at the conclusion and work backward. Therefore, I argue that works like Todres and Rein are actually causing further harm to the victims and survivors of human trafficking. The irony is lost on Todres when he states that misunderstanding the needs of the “other” can “lead well-intentioned individuals and governments to exacerbate the harm or waste resources on initiatives that provide little meaningful assistance”. I would argue that is exactly what Todres and later Rein have done. They are applying their conclusion first, working to prove that conclusion, and using weak studies (see the DOJ study methodology) to do so. By muddying the waters around this major issue, we dilute all efforts to address the root causes and make lasting change. 
     Perhaps the most important part of the DOJ study is when a healthcare worker is quoted as saying that it is long past time to focus on educating men to impact the demand for trafficked women (Raymond, Hughes, 2000). The point is made here that the industry is only alive because of the demand from men. If more men did not create that demand, the industry would shrink. This is a subtle but powerful line in the lengthy study. Todres argues that there is a racial, gendered, and class-based “othering” taking place when white men exploit women in Thailand, but wouldn’t do it in their home country (Todres, 2009). Todres has again missed the point entirely as a result of leading with his conclusion instead of the facts. The reason men, not just white men, exploit women in Thailand is that Thailand has fostered an industry for the demand created and the degenerate men take advantage of the opportunity to take part without fear of the legal fallout they would have if they did the same thing in their home country. That is not to say that the blame should be taken off the men who are paying for sex. Indeed, they should be prosecuted to the full extent of the law. However, if the environment has catered to the demand of paying “customers” and opportunists exploit that fact, that has nothing to do with race or gender. 
     This critique is not meant to throw out all the arguments presented by Rein. Of course, there are very real problems with the help that survivors can get after being rescued, as well as the process of prosecution. However, Rein has committed the same error that is so common in critical theories. She has formulated a problem but has not provided any reasonable solutions. Reading through her application of the seven tenets, the most repeated idea is training. Rein mentions training for Judges, training for law enforcement, and training for everybody involved. Of course, the only acceptable training will be one filtered through a critical theory that requires you to hold certain assumptions. As with most critical theories, the author is highly motivated to upturn or destroy the current system yet doesn’t have any reasonable replacement. 
Perhaps, instead of focusing on the race of the women, applying a new critical theory, or that the women need new terminology for their struggle, we make a meaningful impact on the struggle these women face. It’s time our men do better. It’s time our men find their dignity, learn what it means to be a good man, masculine without abuse, strong but protective, and start leading by example. Put more effort into helping our young men grow up into adults that can see that they are responsible for the world they help create and they must do something about it. 

Men must do better. 

Suggested Citation:

Response to: Suffering At The Margins: Applying Disability Critical Race Studies To Human Trafficking In The United States. The Arc-Hives, 2023.