Last summer one of my Refugee Seminar students, Marsha-Ann Davidson, interned at a law firm in China. The experience led her to research and write an excellent paper concerning gender and human trafficking in China. she has given me permission to post it here. Read and learn.
IMPACT OF GENDER IN HUMAN TRAFFICKING: CHINA
Marsha-Ann Davidson
“No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.”[1]
INTRODUCTION
Memey is a 28 year old Indonesian woman who after losing her husband sought employment abroad; being poverty stricken and uneducated she saw overseas employment as her only option to support her child. [2] Perpetrators took advantage of her illegal status and promised her work. [3] Upon arrival in Malaysia Memey was given new clothes, makeup and was treated to dinner. [4] This was however the only pleasant experience that she had since arriving in the new country because she was then put to work as a sex worker rather than working as a waitress as she had expected. [5] With no access to her passport and no contact with the outside world Memey found herself trapped in a country with no friends and no way to return to her homeland; she had fallen victim to the scourge of human trafficking. [6] Memey however was more fortunate than many others as she was aided by a client and was later rescued. [7] She was however left with the scars of the ordeal; the horrific experiences that she had encountered and HIV as a constant reminder. [8] Like many human trafficking victims Memey kept silent about her experiences for many years withholding this information even from her family because of shame and humiliation. [9]Memey and others in similar situations generally keep this to themselves for varying reasons. Some perpetrators instill fear in their victims by threatening to kill their family members or hurt them badly if they try to escape. Some victims may feel that they have let down their families. For victims like Memey there is little hope because of the slight impact that efforts to combat human trafficking has made.
Every year millions of men women and children alike are trafficked and sold to many countries around the world; this is a lucrative business amounting to billions of dollars annually.[10] There is a growing need for awareness of human trafficking and although more and more people are becoming aware; human trafficking remains a growing concern as there are still leaps to be made in effecting a change in this global problem. We hear continuous cries from victims such as Lamo Bokdin who after accepting a job in a restaurant in China was later told by her boss that her services were no longer needed at the restaurant and a contract was made for her to marry his brother.[11] Her boss signed a contract for $6000 US dollars and warned Lamo that if she refused to marry his brother, she would be offered to other buyers. [12] After 3 months of captivity and no interaction with others Lamo escaped. [13] We also hear the cries from victims such as Khin Khin who was sold by her father at age four to pay off a gambling debt and to escape a lifetime of poverty. [14]She was then sold for a second time in China. [15] “China is designated as a source, transit and destination country for women and children trafficked for the purpose of sexual exploitation and forced labor.” [16] Although we may not live in China this affects our global community in many ways some of which will be discussed in this paper. Through this paper my goal is to bring a renewed awareness of human trafficking as problem of deep concern in China.
I have always been a strong believer in woman’s equality and that women should be respected rather than harmed by men. Two years ago I sat in a room where a story was told about a woman and her ordeal as a victim of human trafficking. It was then that I realized how fortunate I was to live in the circumstances that I live in and by the same token how oblivious I was to the gravity of the issues in the world around me. I recently spent a month in China fulfilling an internship assignment as a result I decided to focus primarily on human trafficking in China. It is my hope that through this paper I will create a greater awareness of what is emerging as one of the greatest concerns in human rights and that is affecting our world at large. There are two major consequences of human trafficking which has the effect of turning back the hands of time; first human trafficking reinstitutes and reignites slavery and is referred to as ‘modern day slavery’ [17] and second human trafficking nullifies the progress made towards equality of women through civil rights movements. Human trafficking should concern us all whether we live in a country that is classified as a “Tier 1, 2 or 3 country on the watch list.”[18] We can all help in effecting change. This paper will address human trafficking focusing primarily on the aspect of sex trafficking in China and the part that gender plays in human trafficking in China. This paper will also examine circumstances that may foster or lead to human trafficking, the source, possible reasons, and lastly will propose solutions for combating this huge problem. One of the main facilitations of this problem is the conventional gender roles that have hampered the process toward gender equality hence there is a need to redefine these roles. In exploring this I will focus particularly on the history of treatment towards women and the role governmental policies have played in fostering and facilitating the growing problem of human trafficking.
HUMAN TRAFFICKING DEFINED
“Human trafficking is a modern-day form of slavery involving the illegal trade of people for exploitation or commercial gain.”[19] It can also be defined as “an illegal form of international trade and is associated with forced prostitution” or simply “the trade of women for the purpose of prostitution.” [20] The Protocol to Prevent, Suppress and Punish Trafficking in persons (hereinafter Protocol), especially women and children, supplementing the United Nations convention against transnational organized crime in their article provides the following definition of trafficking in person: [21] “For the purposes of this Protocol:(a) ‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.[22] Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of Organs; (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;(c) The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in Subparagraph (a) of this article;(d) “Child” shall mean any person under eighteen years of age.” (Protocol) “Human trafficking involves movement of people with force, fraud or deception in order to have them engage in exploitative slave like labor.” [23]
Human trafficking generally occurs in two scenarios, “the first is when an individual is taken by force, abducted, drugged, or sold to the trafficker.” [24]The second and more common scenario is “when an individual is deceived by the promise of a better life and accepts a job only to find out later that the actual conditions and employment are not as promised.” [25] Human trafficking also includes both sexual exploitation and forced labor. [26]
HISTORY OF HUMAN TRAFFICKING IN CHINA
“China is the source, transit and destination country for human trafficking;” [27] in point of fact the problem is widespread in China as “China … has internal trafficking problem as well as international trafficking of citizens to other countries.” [28] “Trafficking in China has many forms: the purchase of women for brides, the purchase of a male son, or the sale of unwanted female children.”[29] “Men primarily in the rural China are desperately seeking a bride in a country where women are in short supply.” [30] Some theorist believe that China’s Trafficking problems were exacerbated by ‘the one child per couple policy’ which resulted in mass gendercide of female babies and has now increased the demand for women to be trafficked into China.[31]
“State-sponsored forced labor continues to be an area of significant concern in China. ‘Re-education through labor’ (RTL) was a systematic form of forced labor that had existed in China for decades. [32]The PRC government reportedly profited from this forced labor, which required many detainees to work, often with no remuneration for up to four years.[33] By some estimates, there had been at least 320 facilities where detained individuals worked in factories, mines, built roads, and made bricks. “[34]
The Chinese government has openly acknowledged that a problem of human trafficking exists and responded by putting laws in place, laws such as the protection of rights and interest of women and Article 240 of the Criminal code; with article 240 traffickers can receive penalties and depending on how egregious the circumstance is, they may receive the death penalty. [35] China also implemented a law on the Protection of Rights and Interest of women prohibiting the abduction and trafficking of women and rendering government assistance to victims of human trafficking. [36] The fight against human trafficking is further compounded by the “corruption and complicity of the local government” and the “lack of transparency in the Chinese government.” [37] Some government officials are bribed by traffickers and pimps alike.[38] Further, “even where officials are not directly bribed by those involved in human trafficking the situation is often ignored as an embarrassment to the Communist Party a government system that is proud of its ability to cure social problems.” [39]
The US State Department classifies countries based on affirmative steps taken to end human trafficking. The countries are categorized in Tier 1, Tier 2 and Tier 3 Watch list. [40] A country is categorized as Tier 2 if a) “the absolute number of victims of severe forms of trafficking is very significant or is significantly increasing or (b) there is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year or (c) the determination that a country is making significant efforts to bring themselves into compliance with minimum standards was based on commitments by the country to take additional future steps over the next year.” [41] In addition the Protocol compels states to implement laws or supplement laws in efforts to combat the demand for sexual exploitation of women and children that resulted in them being trafficked. [42] “The better the country performs based on the listed criteria, the higher the ranking for the United States via the Trafficking victims protection Act of 2000 (TVPA).”[43] In the year 2012 China was listed as Tier 2 watch list which means that they have not achieved the minimum standards but have made significant efforts in achieving minimum standards.[44] “In fact the Trafficking in Person report (TIP report) drafted a report highlighting the years 2008 to 2015, China ranked Tier 2 every year except in 2013 when they were listed as Tier 3.” [45]
As indicated before, Trafficking in China has many forms. “The purchase of women for brides, the purchase of a male son, the sale of unwanted female children and the use of people for slave labor, commercial sex or prostitution.”[46] “Men primarily in rural China are desperately seeking a bride in a country where the women are in short supply.”[47] “These men will resort to purchasing a trafficked woman for marriage.”[48] “Couples seeking a male child will sell or even murder their girl child in order to make room for the purchase of a trafficked baby boy.”[49] “Young adult women and boy infants are bought and sold like cargo in China.” [50]
Countries are penalized when they fail to achieve minimum standards and these penalties can include “not receiving humanitarian aid and foreign assistance that is unrelated to trade.” [51]The goal of penalties is to steer the country in the direction to act on the trafficking victims behalf.[52] “In addition offending countries risk facing the opposition of the U.S to their receipt of aid from the International Monetary Fund and the World Bank.” [53]One could argue however that these penalties may not lead to benefiting the victims of human trafficking and may even result in harm to the victims because ” they fail to address the issues of demand in sex trafficking.”[54]
“The Macao Legislative Assembly in China…declares certain acts as crimes and makes them punishable by as many as twelve years in prison.” [55]Crimes such as murder, forced prostitution, kidnapping, assisting in illegally importing and exporting weapons or illegal immigration. [56] China has made efforts such as providing temporary housing and medical treatment for victims of sex trafficking in areas such as the southern provinces and in Guangzi. [57] It seems that while China may have made some steps forward they also made a few steps backward and to understand the gravity of the problems in China, we must first look at its history involving North Korea.[58] In 2012 approximately 200,000 North Koreans escaped to China to get food and water. [59] Most of these escapees were fleeing from “political persecution and from becoming victims of oppression and death because they happened to be relatives of a targeted individual.”[60]China made the decision to align with the North Korean government and in so doing violated United Nations Refugee convention; refugees were arrested, placed in camps, returned to North Korea, and even executed.[61] If North Koreans were “caught escaping North Korea they ran the possibility of being sold as wives, concubines, strippers, or prostitutes the lack of women in China made the shortage very real for the trapped victims.” [62]
In 2007 there were 400 parents in China whose children were missing who the parents believed were enslaved; the parents made no progress in getting help from the government as a result they went public.[63] The officials however refused to help the parents find their children.[64] Later 41 children out of the 576 child slaves were recovered to the great dismay of the parents. [65] On the other hand China has made efforts in disarming trafficking networks during 2001-2005.[66] “China has investigated more than 28,000 trafficking cases and arrested more than 25,000 individuals and has rescued over 30,000 helpless victims.”[67]
HISTORY OF TREATIES RATIFIED BY CHINA
“China has ratified over twenty human rights treaties, including the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and the Convention on the Rights of the Child (CRC) along with its two optional protocols.[68] It has signed but not ratified the International Covenant on Civil and Political Rights (ICCPR), and has opposed the International Criminal Court along with the United States, Israel, and a handful of other states.”[69]
“China has actively participated in the international human rights regime in other ways as well, submitting reports, participating in the drafting of new instruments, engaging in numerous multilateral, regional, and bilateral dialogues on rights issues, and hosting a number of important regional and global human rights meetings.[70] Notwithstanding sovereignty concerns, China voted in favor of sanctions against apartheid in South Africa. [71]It has also allowed a limited number of visits from international rights monitors, including the Special Rapporteur on Freedom of Religion and Belief, the Working Group on Arbitrary Detention, and the Special Rapporteur on the Right to Education.[72] In participating in the international rights regime, China has, like other countries, sought to promote and protect its own national interests. ” [73]
“Article 236 of the Chinese Criminal Code provides a three to ten year sentence for rape while sexual exploitation of girls under the age of fourteen can receive a sentence of life imprisonment or the death penalty.” [74] “Article 240 prohibits abducting and trafficking a woman or child and specifies a five to ten year sentence for this crime.”[75] There is also a” ten year to lifetime sentence or the death penalty may be imposed on those who abduct and traffic a woman or child, rape or prostitute the woman , steal an infant for the purpose of selling the victim or sell the victim outside of China.” [76]
“In 2013, the PRC’s National People’s Congress ratified a decision to abolish RTL. The government closed several RTL facilities by the beginning of April 2014; however, the government converted other RTL facilities into state-sponsored drug detention or ‘custody and education’ centers, and continues to force prisoners to perform manual labor. Some women arrested for prostitution are detained for up to two years without due process in ‘custody and education’ centers and subjected to forced labor—such as making tires, disposable chopsticks, toothpicks, or dog diapers—in at least 116 ‘custody and education’ centers throughout China.”[77]
HISTORY OF THE TREATMENT OF WOMEN IN CHINA
To address the issue of human trafficking we must now look at the circumstances that foster or lead to human trafficking. I submit that one of the main factors that has influenced the rise and growth of human trafficking in China is the traditional view of women as inferior and of little worth. The first evidence of this negative view of women in China can be drawn from the name Nueiren the Chinese word for woman which translates “inside person” which suggests that women’s role in society is limited to the home.[78] “Women’s inferiority is deeply engrained in the Chinese culture and is reflected in five classics a canonical literary text ascribed to Confucius.[79] The Confucian view of women is clearly stated female was inferior by nature; she was dark as the moon and changeable as water, jealous, narrow minded and insinuating; She was indiscreet, unintelligent and dominated by emotion. Her beauty was a snare for the unwary male, the ruination of state.” [80] The position of subservience of women is deeply entrenched in the Chinese culture. Girls in the Chinese culture are made to understand that they are expected to leave home after marrying into their husband’s family and to take care of their husband’s parents. [81] Because of the patriarchal and patrilineal biases in the Chinese culture women are groomed and raised to be subservient to men; and that includes all male figures including one’s own son.[82] In this culture boys are welcomed but girls are seen as a financial burden mainly because of the rule of primogeniture where a male born traditionally inherits the parent’s fortune and is seen as the child that can continue the family line. [83]
Women were once taught the adage that “an ignorant woman is virtuous and a woman should be a virtuous wife and a good mother.” [84] Women were also taught four virtues ” first a woman should know her place in the universe and behave in compliance with the natural order of things; second she should guard her words and not chatter too much or bore others; third, she must be clear and adorn herself to please men; and fourth. She should not shirk from her household duties.” [85] As a part of subordinating women; women were subjected to a ‘crippling practice of foot binding’, this is a process that females were subjected to from age five. In this process the girls’ feet were bound resulting in broken arches and curled toes this was done to prevent wives and concubines from wandering away. [86] Women did not have the right to choose whom they would marry or the right to property and were overcome by the authority of their husbands. [87] The value of females in the Chinese culture may best be illustrated by the fact that as late at 1997 girl babies were sold in rural areas for one thousand ounces of gold while boys would fetch a price of ten thousand ounces of gold. [88]
Chinese women and girls are subjected to forced prostitution throughout the world,
Including in major cities, construction sites, remote mining and logging camps, and areas with
high concentrations of Chinese migrant workers.[89]
“Between 1949 and 1978 the Communist rule under Mao Zedong temporarily tried to relieve the subjugation of women by giving them the legal right to vote, education, employment, marriage and inheritance rights.” [90]This could be viewed as effective at the time because during this time period prostitution was eradicated completely. [91]This success was however short-lived. In 1978 Deng Xiaping implemented economic reforms and while it served the purpose of bringing transformations to the Chinese society it resulted in a setback in equality for women.[92] In 1979 with the movement from controlled economy to a free market economy problems such as prostitution and abduction of women resurfaced; this was also the year that the One Child Policy was instituted. [93] Although the supremacy of men over women was officially abolished in 1950 there was strong retaliation from the male population as in that year women who sought to exercise their rights to divorce were subjected to violence and many of whom died. [94] There also was an increase in violence and deaths in that year. [95] While women were offered more rights equality was far from being achieved. [96] “In 1992 China had adopted the women’s law which constituted the first basic law to protect women’s rights and interests in a comprehensive and systematic manner.”[97]Although there is existence of general principles of equality or the open access to employment for women, they are still significantly disadvantaged because they are labeled and seen in child bearing roles. [98] Women in China are simply expected to choose family responsibility over employment.[99]
Today it is still evident that there is more to be done in the Chinese culture in terms of acceptance of women as a truly integral part of society. Recently I had the opportunity to travel to China where I stayed for six weeks. I interacted with people on a daily basis while taking public transportation. The roles that men and women played in society were immediately apparent in basic elements in society. I experienced culture shock because it was very commonplace that women were expected to give way to men. Many timidly moved out of the way and allowed men to go in front of them. For the duration of the time that I spent in China only four men outside of the men I worked with allowed me to go ahead of them in a line or to enter a door. It was apparent that male dominance is deeply engrained in the society as I watched men constantly push pass women to enter doors first or to get in line. In fact there was a general lack of respect for or recognition of lines because regardless of your place in line persons would constantly move in ahead of you. It was very surprising to see the reaction of women who were pushed aside by men as they all appeared unaffected and were submissive to this treatment, this, I concluded, was a learned behavior because I did not share the same attitude.
The cycle of “Chinese women’s cultural status evolved from dutiful wife and mother to constitutional ‘equal’ and back again to ‘housewife’ after a brief respite, the Chinese culture has traditionally valued women less than men.”[100]
Even though gender inequality can still be seen in many cultures, China is milestones behind other cultures in closing this gap. This, it is believed, is because male dominance is so deeply engrained in the Chinese Culture and one thing that supports this is China’s one child policy.
CHINA’S ONE CHILD POLICY
In 1979 the Chinese government instituted a One Child Policy to control the enormous population expansion.[101]This was an effort by the government to slow the population growth because at the time it was projected that the population growth for the year 2000 would have been 1.4 billion and the Communist party had a goal to reduce population growth to 1.2 billion. [102]The policy started out limiting each family to a maximum of three children, but was later revised to limit couple to having only one child.[103] Under this policy if a woman in China was found to have exceeded the birth restrictions she would be subjected to forced sterilization and abortions. [104] Further couples who had two or more children were sterilized.[105] It was in the best interest for women to comply because there was a registration process and a child who was not registered could not receive education or healthcare. [106] For those who did not comply or refused to sign the One Child Policy they were denied the essentials such as food, drinking water and electricity,[107] conversely those who complied were given economic incentives.[108]
“In order to comply with the One Child Policy and to ensure that the family has a coveted boy child millions of persons in China have committed sex selective abortions infanticide of their own baby girls, non registration of the first or second infant in the family and the abandonment or sale of their own girl children.” [109] Another way Chinese parents responded to the One Child Policy was in abandonment of infant girls; creating a “long standing tradition of throwing away infants.” [110]Many parents reasoned that if they were to abandon their baby girls they would then have a shot at having their son. [111] As a result over 95% of babies in state orphanages were girls. [112] Although Child Abandonment is illegal it has increased over the years as a result of the One Child Policy. [113] Reports estimate that approximately 100 million women were unaccounted for and in a 2000 census it was reported that the sex ratio was 117 boys to every 100 girls this was unlike the 105-106 boys to 100 girls global average.[114] This disparity is directly linked to the demand for prostitution and mail order brides because there is a shortage of women. Over time the One Child Policy evolved to “One child in China’s Cities, two in the rural regions and three in the ethnic regions.” [115] In 2013 there was yet more change in the one child policy where a couple was allowed to have two children if one of the parents was an only child, many couples however thought of the expense of raising a child. [116] One of the local attorneys shared this sentiment with me because at the time she had one child and because her husband was considered a minority she was allowed to have another. She however stated that although she would be allowed to have another it would be too costly. After my time in China I was able to understand the rationale of the Chinese government for instating the one child policy to reduce the severe over-crowding in cities like Beijing. For me the experience was uncomfortable as there was the constant feeling that my personal space was being invaded. This was even more pronounced during peak hours on the subway. However I am not in favor of the One Child policy because doing so will mean being in favor of all the attendant repercussions such as; the prostitution, mail order brides, abortions, sale of female babies, and in effect human trafficking. Today the age old One Child Policy has ended in an attempt to “increase labor supply and ease the pressures from an aging population” [117]While the one child policy ended late October 2015 it was replaced with restriction of two children per couple arguably the two child policy. [118] “Demographers estimate that by 2020, there will be a surplus of 24 million men, desperately looking for spouses.” [119] Once can argue that the government acted too late in trying to reverse the One Child policy which had been in place since 1979 and had set off so many ripple effects in areas such as human rights and particularly the shortage of women which directly impacted the growth of human trafficking in China.
THE CASE OF BI XIA QU V. HOLDER
Bi Xia Qu lived with her parents Liquan and Yiquan Qu. [120] Bi Xia Qu’s father operated a seafood farm, in the course of business her father borrowed funds in the amount of three hundred thousand Yuan (today an equivalent of $500 US) from Zhang Zhang.[121] Zhang was a powerful man known in the underworld as a “big thug” who had ties with the Chinese government.[122] On October 31, 2005 Zhang appeared at the home of Qu’s father where he demanded that Qu’s father repay the loan in the amount of three hundred thousand Yuan or in lieu of payment Qu’s hand in marriage.[123] Zhang further threatened the family that in the event they were to seek help from the authorities he would have them imprisoned using the connection that he had with the government. [124]Upon return to her home on the evening of October 2015 Qu was kidnapped by Zhang and held captive in a guarded home where he attempted to rape her, he tore off her clothes, kicked and slapped her Qu however managed to fight him off.[125] Following that incident Zhang threatened her daily stating that she would be imprisoned if she did not have sex with him or repay the loan.[126] Qu was also told that if she were to try to escape her hands would be chopped off. [127]After being held captive for half a month Qu escaped and fled to her Aunt who solicited the services of a “snakehead”[128] who smuggled Qu to the United States. [129] When Qu left China on November 18, 2005 a local civil summons was processed in Qu’s name on the same day of her departure.[130] Qu feared that if she were to return to China she would be reprimanded by the government for leaving without permission and would be harmed by Zhang. [131] Although Qu showed proof of corroboration of her story which included the summons certificate, requesting that Qu appear before court in China for her unsettled debt, letters from Zhang demanding that Qu’s parents repay their debt or to have Qu as substitute for this debt, her request for asylum was denied.[132]
“The attorney general has discretion to grant asylum to a refugee that shows that she has suffered past persecution on account of race religion nationality membership in a particular social group or political opinion or that she has a well- founded fear of future persecution on these grounds. 8 U.S.C.S. § 1101(a) (42).”[133] The court adapted a broad interpretation of particular social group as encompassing any group…”because of shared characteristics that are either immutable or fundamental.”[134] “The term ‘particular social group’ is broad enough to encompass groups whose main shared trait is a common one such as gender at least so long as the group shares a further characteristic that is identifiable to would-be persecutors and is immutable or fundamental.”[135] “In this case Qu showed that she was a member of the social group of women in China who have been subjected to forced marriage and involuntary servitude, she submitted a report in 2005 from the Department of State which supports the fact that women who are victims of trafficking on account of their sex are an identifiable and visible group in China.”[136]
The report stated “the law prohibits trafficking in women and children however, trafficking in persons and the abduction of women for trafficking remained serious problems…most trafficking was internal for the purpose of providing lower middle income farmers with brides or sons. [137]Some cases involved trafficking of women and girls into forced prostitution in urban areas, and some reports suggested that certain victims…were sold into forced labor.”[138]
Qu qualified for asylum because she” suffered a severe form of the practice-she was kidnapped for two weeks until she escaped, her perpetrator attempted to rape her, and he threatened to send her to prison if she did not marry him. “[139]Although the Immigration judge (IJ) found her to be credible the court denied her application for asylum and withholding of removal and CAT[140] protection.[141] ” The IJ sua sponte reopened the proceedings and granted Qu’s application for asylum.[142] The Department of Homeland Security (DHS) appealed the IJ’s order.[143] On January 13, 2009 the board of immigration appeals (BIA) overturned the IJ’s decision and ordered that Qu be removed from the United States to China.”[144] Qu appealed and the case was remanded to the BIA for processing.
This case illustrates one the challenges faced by victims of human trafficking the challenge to prove that they are members of a protected class. Later in this paper I will submit a proposal to address future challenges.
SOLUTIONS TO THE HUMAN TRAFFICKING PROBLEMS IN CHINA
“Scholars in the field researching sex trafficking and its many causes recognize ‘the male demand for the sex of prostitution as the most immediate and proximate cause of the expansion of the sex industry, without which it would be unprofitable for pimps, recruiters and traffickers to seek out a supply of women'” [145] The underlying cause according to author Cheryl George is demand. [146]If there were no demand for sex trafficking the reality is that a multibillion-dollar industry would not exist let alone flourish.[147] In considering solutions to human trafficking many persons tend look at the aspect of supply versus the aspect of demand. [148] If the demand is addressed as vigorously as the supply we as global community would get to the actual root of the problem. [149] “Four components comprise the demand of human sex trafficking (1) the men purchasing commercial sex acts; (2) ‘the exploiters who make the sex industry’ (3) the states that serve as destination countries; and (4) the cultures and environments that tolerate and promote sexual exploitation. “[150] In eliminating the problem perhaps the key is to focus on the demand in terms of why there is a demand for women to be used as sexual slaves or an instrument in the trafficking industry. [151] If only it were as simple as looking at the men who are unsatisfied in their relationships but these women are generally used for fifteen minutes at a time where it seems that the driving force is to find short-term arousal or excitement. [152] However this ignorance and lack of respect for women is not isolated in any particular ethnic group, the demand group consists of men of all colors and creeds, and [153] while it would be more comforting to think of these men as menaces, narcissistic or mentally ill, men who engage in such acts of demoralizing women that is not so, Many of these men are regular members of society whose main desire is to enforce control, dominance, and power over the female as is seen in the act of rape, brutality, and torture. [154] Rape is also used in human trafficking as a weapon of war, ‘this tool has been used to terrorize degrade and destroy its female victims.’ [155]
The media over the years has successfully portrayed women as sex objects and perhaps this is the main tool that would be needed to promote women equality on a large scale. Playboy’s recent announcement of the removal of nudity from its magazines is a step in the right direction. In order to portray women as equal to men one has to first embrace this: While it is easy to say that women have achieved equality based on efforts made over the years there is still much to be done in this area, as women are still paid far less than men even if they are just as good or better at their jobs. These actions play a key role in how men view women and how society teaches men to view women. Leaders in developed countries have a responsibility to the world at large to blaze a trail so that other developing countries may follow.
Perhaps the recommendation of the Committee on the Elimination of Discrimination against Women (CEDAW) is one of the most viable solutions to the issue of human trafficking in China. The CEDAW has proposed the decriminalization of prostitution because prostituting and trafficking of women and children is widespread. [156] “ National laws that prohibit prostitution often discourage victims from seeking help from the authorities who might ether throw the trafficking victims in jail for engaging in illegal prostitution or deport them to their home countries where they are forced to live as social outcast in horrific conditions.”[157] CEDAW proposed that China legalize and regulate prostitution in an effort to stop the rampant illegal sex trade.[158] This proposal would, in effect, decrease the human rights violations associated with prostitution because the victims would be able to seek help from the local authorities without fear of being penalized and this way government would be able to have leads in identifying perpetrators.[159] Conversely authors such as Susan Tiefenbrun believe that if prostitution were legalized in China that it would be very difficult to differentiate between the victims of human trafficking and the ones who willingly subject themselves to prostitution.[160] I tend to agree with Susan Tiefenbrun that legalizing prostitution is not the answer to this problem. If prostitution is legalized it could have the effect of creating even more traffickers with human trafficking being such a lucrative business as it is. [161]The victims would find it very hard for their needs to be addressed and this would lead to further degradation of women. Perhaps Susan Tiefenbrun’s proposal for an inflation of criminal penalties for trafficking would be a good approach as currently the penalties are very light. Although egregious forms of human trafficking may receive the death penalty, many believe the death penalty should be applied across the board and be applied to all perpetrators of all forms of human trafficking or modern day slavery in China.
“In China workplace policies that facilitate greater male engagement as care givers in the lives of children can combat the nexus between gender discrimination in the home and workplace. [162] “In addition labor laws that equalize employment opportunities for men and women by redistributing family leave benefits, create an environment where women are free from discrimination and stereotyping and where men are better able to shoulder family and care-giving responsibilities.”[163] The Chinese government should further provide incentives for companies who promote and hire both men and women at an equal rate perhaps by offering tax breaks to encourage this. The main solution in combating the human trafficking issues in China is to redefine gender roles in society. This effort should be channeled through two of societal most influential mediums which are the family and the media. Our first exposure to culture is through our family in the home. I propose that emphasis should be placed on the next generation by teaching children that while men play the role as the head of the household it does not mean women play less of a role than men do. Emphasis should be placed on gender equality so that women are also portrayed as playing an integral role in society not just inside the home but outside of the home to counter view of women being solely subservient to men. The challenge I foresee with this proposal is that hundreds of grandparents are shouldered with the responsibility daily of keeping children in the days while parents are at work this a huge part of Chinese culture. As a result of this the old traditions will nonetheless be instilled in the younger generation. The media would be an effective forum to educate the citizens and steer them in the direction of gender equality because the media in China is strictly controlled by the government. For example I was informed by some local residents that pornography and even very mild forms of nudity are banned in China and TV shows are strictly censored. Social media and the internet are also monitored, for example, there is no direct access to Google or Facebook in China. The feedback from locals is that the government limits their access to information. The great advantage of the governmental structure in China is that when decisions need to be made there are very few channels to go through to implement policies. The disadvantage, on the other hand is the lack of checks and balances and policing of the government, this would be beneficial in addressing any corruption that may exist.
Another viable option is to implement equality laws similar to the United Kingdom Equality Act of 2006 “laws that not only prohibit gender specific discrimination but also discrimination on the grounds of marital status pregnancy or potential pregnancy and family responsibility.”[164] “The lack of shared caring responsibilities between men and women is often the single biggest cause of the income gap.”[165]“Thus a key component in achieving gender equality in China is workplace regulations that support both fathers and mothers in taking more responsibility for caring for children.” [166]
“Naming and Shaming has proven successful in other areas of human rights …however there are arguments that naming and shaming is decreasing in efficacy particularly in countries with increasing economic growth.” [167] The situation in China validates this as there has been consistent naming and shaming of China for many years but this has not influenced the government to achieve the minimum standard of the TVPA. [168] The naming and shaming system should be amended to show more detailed standards of how a country may move from each tier to the other and possibly attach more severe sanctions [169]
In order for China to curtail human trafficking it is also necessary for the Chinese government to “provide adequate funding to local and regional governments to effectively implement the new National action plan to combat trafficking.”[170] “The government must also provide meaningful protection to foreign and domestic victims of forced labor and sex trafficking including formal victim identification rehabilitation and financial as well as psychological and medical services.”[171] “The legal system must actively investigate, prosecute and convict public officials who participate in or facilitate trafficking.”[172] In addition “Chinese trafficking laws need to be revised in order to criminalize all forms of labor that rise to the level of slavery, to the extent that laws needs to be revised in order to criminalize trafficking in accordance with international standards.” [173]
In dealing with prostitution the government should address the socioeconomic status of the individuals. Economic deprivation and poverty have been seen as the core causes of prostitution.[174] Individuals with a lower income are most susceptible to being victims of the sex trade because of the inability to find jobs with adequate pay.[175] In combating this issue the government should seek to provide more jobs for unemployed persons thus providing them with options so that they would be less likely fall victim to sex trade out of desperation.[176]
The US department of State in their TIP report recommended that China “redefine the definitions of trafficking-related crimes in accordance with the 2000 UN TIP Protocol by separating crimes such as abduction, illegal adoption and smuggling and criminalizing the facilitation of prostitution involving children under the age of 18; end forced labor in state- sponsored drug detention and custody and education centers; investigate prosecute and impose prison sentences on government officials who facilitate or are complicit in trafficking.” [177] In public data released by the Ministry of Public Security (MPS) officials stated that the government arrested 194 alleged traffickers and convicted at least 35 of them.[178] “Due to limited data and the government’s tendency to conflate human smuggling, child abduction, prostitution, and fraudulent adoptions with trafficking offenses, it is not clear the exact number of trafficking cases the government investigated and prosecuted in accordance with what international law defines as trafficking in persons.”[179] Whether the reporting of 194 alleged traffickers were captured and 35 convicted were accurate this is a very low number considering the population size of China and the severity of the issues surrounding human trafficking in China. This shows that there is much to be accomplished in combating human trafficking in China.
“The legal remedy of asylum is available to noncitizens legally in the U. S. and to undocumented noncitizens seeking protection from persecution they faced or would face in their home country on account of one of the several specific protected grounds. [180]Thus, not all immigrants are protected from persecution. Rather, the persecution must have a connection to the specific protected characteristics of race, religion, nationality, political opinion, or membership in a particular social group. [181]A grant of asylum will allow the applicant, after a one year stay in the United States, to adjust their status to that of a legal permanent resident. [182]The burden of proof for asylum is a showing of a well-founded fear of persecution by an applicant.”[183] I propose that the U.S. State Department amend the requirements for grant of asylum to include a new class; a class that will comprise of victims of human rights violations which in essence will include human trafficking. As I have learned the process that a potential asylee is faced with is a complicated process and documentation is needed as support that the applicant is having a well founded fear of persecution; because there are different types of human trafficking and in many instances there is no actual documented evidence to prove the ordeals that these women have gone through except for emotional and physical harm. There should be a separate category to address this.
In the case of Bi Xia Qu v. Holder, Qu was able to prove that she would be persecuted if she returned to her country because it was documented in a letter by her captor. Many
Trafficking victims have no such verification. These asylees should be given temporary status and be placed into a rehabilitation program which should include housing and therapy because in many instance these victims become victimizers and in this case human traffickers. Providing such therapy this will discontinue the cycle of victims of human trafficking becoming human traffickers. While the floodgates may open so to speak, where many more victims will be put through the process; we should not shy away from the responsibility instead as Professor Leonard Birdsong puts it “Our rate of grants of asylums should be worn as a badge of pride because it shows that we are a country with an immigration system that provides for humanitarian relief to many fleeing persecution.”[184]
CONCLUSION
“Lu Xuela was forced into marriage with a man 26 years her senior. After the wedding she tried to run away but was caught each time tied up and beaten by her husband. [185]He drove needles under her fingernails and Liu was bruised and bloodied form head to toes, with arms swollen to the size of her thighs.[186] When people from the County Women’s Federation tried to intervene, her husband yelled ‘what do you think you are doing she is mine I got her in exchange for my little sister.’ “[187]
“Sixteen-year-old Shen left his small Chinese farming community for the promise of a well-paying job in a nearby city. [188]He was then abducted and taken to a brickyard where he was beaten repeatedly with iron bars and bricks starved and forced to perform heavy manual labor for twenty hours per day. “[189] ” These stories though shocking are not unique, [190] human trafficking is the movement of person across and within national boundaries for the purpose of coercing those persons to perform exploitive labor including sex work affects every country around the globe.” [191] It is considered as one of today’s leading criminal enterprises…with an annual global market of about $42.5 billion.” [192]
Human trafficking is at an all time high in China however this also affects us here in the U.S. for three reasons. First we are affected by human trafficking in China because we are part of the same global community. With movements towards new technology over the years counties have now become globally connected and interdependent on economic and social fronts. Second, the human trafficking ‘crisis’ in China is also our problem because women and children are not only obtained from the neighboring Asian countries and subjected to forced labor and sex trafficking but women and children are also obtained from the U.S.[193] Third these human trafficking victims also find themselves in the U.S. seeking asylum as in the case of Bi Xia Qu v. Holder. While the “The Department of Homeland Security discloses information about the numbers of asylum grants and denials but it does not disclose much information about the characteristics of asylum seekers.”[194] China has been the top leading country for grants of asylum over the last few years recording a range of 26 to 35 percent which far exceeds any other country.[195]
To reiterate in addressing the problem of human trafficking the Chinese government should mainly focus on re-defining genders roles and status throughout China which is the heart of the problem, this is not a simple solution because the subservient role of woman is so engrained in the Chinese culture. Policies such as the One Child Policy contributed to the degradation and devaluation of women therefore the government should address the many issues that the One Child Policy has caused such as forced labor, increase in demand for mail order bride, prostitution among others. The government should assign an independent committee to investigate the governmental corruption and provide incentives and safe harbor for citizens who provide significant information of trafficking rings that leads to arrest and prosecution. Although a trafficker may face the death penalty in extreme circumstances since the incidences of human trafficking is at a high I propose imposing the death penalty across the board for traffickers and officials who participate in this on the basis that enslaving another is equivalent to taking someone’s life.
“Memey ended her testimonial with this plea: ‘Imagine you were in my shoes, imagine this was your sister, your daughter. It could be you’ [196]
“We each have a responsibility to make this horrific and all-too-common crime a lot less common and our work with victims is the key that will open the door to real change—not just on behalf of the more than 44,000 survivors who have been identified in the past year, but also for the more than 20 million victims of trafficking who have not.”[197]
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”[198]
[1]Universal declaration of human rights, United Nations, https://www.un.org/en/universal-declaration-human-rights/index.html (last visited November 8, 2015)
[2] “Put yourself in my shoes”: a human trafficking victim speaks out, (Nov. 28, 2012), https://www.unodc.org/unodc/en/frontpage/2012/November/put-yourself-in-my-in-my-shoes-a-human-trafficking-victim-speaks-out.html
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Susan Tiefenbrun, Human Trafficking in China, 6 U. St. Thomas L.J. 247,249 (2008)
[17] Cheryl George, Jailing the Johns: The issue of demand in human sex trafficking, 13 FL. Coastal L. Rev. 293 (2012) “Modern day slavery” does not refer to slavery that existed in the era Civil War; however this kind of slavery is similar to colonial slavery. In modern day slavery “innocent people caught and trapped in this web of sex for service.” Human trafficking is a “brutal heinous and damaging situation that many women and children find themselves in as unwilling participants.”
[18] Id at 301-304. The United States Department classifies countries in Tier 1through 3 based on affirmative steps taken to combat human trafficking. Tier 1 is reserved for countries that proactively enforce rights of the victims of severe trafficking and those countries that aggressively investigate and prosecute” perpetrator Tier 2 level on the watch list on the other hand is a “list of countries that have not met the minimum standards, but are making significant efforts to reach these.” China is on the Tier 2 watch list. Countries that get on the Tier 3 level are “woefully inadequate in the area of assisting with prosecuting traffickers.”
[19] What is human trafficking, Department of homeland security https://www.dhs.gov/blue-campaign/what-human-trafficking, (last visited November 9, 2015)
[20] Susan Tiefenbrun and Christie J. Edwards, Article: Gendercide and the cultural context of sex trafficking in china, 32 Fordham Int’l L.J. 731,736 (2009) human trafficking involves the transportation of women across an international border, movement of people with force, fraud or deception in order to have them engage in exploitative slave like labor. “Forced labor is also a form of trafficking and is a significant problem in China.”
[21] The protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations convention against transnational organized crime in there article provides the definition of trafficking in person: Organization for security and co-operation in Europe https://www.osce.org/odihr/19223?download=truerticle 3 (last visited November 9, 2015)
[22] Id.
[23] Id.
[24] Mary Catherine Hendrix, Symposium: Comparative Antitrust Policies in Mergers and Acquisitions: Note: Enforcing the U.S. Trafficking Victims Protection Act in Emerging Markets: The Challenge of Affecting Change in India and China, 43 Cornell Int’l L.J. 173, 178 (2010)
[25] Id.
[26] Id
[27] Id at 189
[28] Id at 191
[29] Tiefenbrun and Edwards, supra note 20, at 733
[30] Id.
[31] Id. at 193
[32] Id.
[33] Id.
[34] Trafficking in Persons 2015, US Department of State https://www.state.gov/documents/organization/245365.pdf (last visited November 9,2015)
[35] Id. at 197
[36] Id at 198
[37] Id at 192 -This lack of transparency is evident in everyday reporting because, based on feedback from local residents, the government/media often understate the number of casualties involved in tragic or serious events. For example while in China there was a huge bombing in August 2015 I was informed by a local residents that this occurred thirty minutes from the location in which I worked. The report given in USA differed from the local report in terms of numbers of casualties. For example a local report stated over 70 casualties when approximately 500 were killed. The view of the local citizens is that the government is highly concerned with how the country is viewed by the outside world. Could this method of reporting mean that there should be an even greater concern with human trafficking in China?
[38] Id
[39] Id
[40] George, supra note 17, at 293
[41] Id. at 293
[42] Id.
[43] Id. at 301
[44] Id. at 303
[45] The Department of State, http:www.state.gov/documents/organization/245365.pdf (last visited November 9,2015)
[46] Tiefenbrun, supra note 16 at 247
[47]Id.
[48] Id. at 248
[49] Id.
[50] Id.
[51] George supra note 17, at 304
[52] Id.
[53] Id.
[54] Id.
[55] Id. at 306
[56] Id.
[57] Id.
[58] Id.
[59] Id. at 307
[60] Id.
[61] Id.
[62] Id.
[63] Id. at 309
[64] Id.
[65] Id.
[66] Id.
[67] Id.
[68] Randal Perenboom, Article: Assessing Human Rights in China: Why the double standard? 38 Cornell Int’l L.J. 71, (2005).
[69] Id.
[70] Id.
[71] Id.
[72] Id.
[73] Id.
[74] Tiefenbrun and Edwards, supra note 20, at 744
[75] Id.
[76] Id.
[77] The US State Department https://www.state.gov/documents/organization/245365.pdf (last visited November 9,2015)
[78] Cathy C. Cardillo, Note: Violence Against Chinese Women: Defining the Cultural Role, 19 Women’s Rights L. Rep. 85, 88 (1997)
[79] Tiefenbrun and Edwards, note 20, at 734
[80] Id.
[81] Id.
[82] Id
[83] Id.
[84] Cathy C. Cardillo, Note: Violence Against Chinese Women: Defining the Cultural Role, 19 Women’s Rights L. Rep. 85, 88 (1997)
[85] Id.
[86] Id
[87] Id
[88] Id at 89
[89] The US department of State, https://www.state.gov/documents/organization/245365.pdf (last visited November 9,2015)
[90] Tiefenbrun and Edwards, supra note 20, at 734
[91] Id.
[92] Id.
[93] Id. 732,734
[94] Id.
[95] Id.
[96] Cathy C. Cardillo, Note: Violence against Chinese women: Defining the Cultural role 19 Women’s Rights L. Rep. 85 (1997)
[97] Jason Chan, Current development: Decriminalization of prostitution in China, 13 New Eng. J. Int’l & comp L. 329, (2007)
[98] Rangita De Silva De Alwis, Opportunities and Challenges for gender based legal reform in China, 5 E. Asia L. Rev. 197,221 (2010)
[99] Id.
[100] Id.
[101] Tiefenbrun and Edwards, supra note 20, at 757
[102] Id.
[103] Id.
[104] Id. at 762
[105] Id.
[106] Id. at 744
[107] Id.
[108] Id.
[109] Id. at 732
[110] Id. at 765
[111] Id.
[112] Id.
[113] Id. at 766
[114] Id. at 764
[115] Id. at 772
[116] New York times https://www.nytimes.com/2015/10/30/world/asia/china-end-one-child-policy.html (last visited November 8, 2015)
[117] Id.
[118] Id.
[119] Sold in Mayanmar and trafficked to china BBC https://www.bbc.com/news/world-asia-30272273 (last visited November 8, 2015)
[120] Bi Xia Qu v. Holder, 618 F.3d 602 (2010
[121] Id. at 604
[122] Id.
[123] Id.
[124] Id.
[125] Id.
[126] Id.
[127] Id.
[128] Snake Head is the name that is given to Chinese gangs that are in the business of smuggling people to different countries.
[129] Id.
[130] Id.
[131] Id.
[132] Id.
[133] Id. at 602
[134] Id. at 607
[135] Id.
[136] Id.
[137] Id.
[138] Id.
[139] Id.
[140] Id.
[141] Id.
[142] Id.
[143] Id.
[144] Id.
[145] Cheryl George, supra note 17, at 293
[146] Id. at 304
[147] Id.
[148] Id. at 295
[149] Id. at 296
[150] Id.
[151] Id. at 295
[152] Id. at 296
[153] Id.
[154] Id. at 297
[155] Id.
[156] Tiefenbrun, supra note 16, at 247
[157] Id. at 247
[158] Id. at 250
[159] Id.
[160] Id. at 250
[161] Id. at 250
[162] Rangita De Silva De Alwis, 5 E. Asia L. Rev. 197, 222 (2010)
[163] Id.
[164] Id. at 223
[165] Id.
[166] Hendrix, supra note 24, at 179
[167] Id. at 173
[168] Id.
[169] Tiefenbrun, supra note 16, at 267
[170] Id.
[171] Id.
[172] Id.
[173] Id.
[174] Jason Chan, 13 New Eng. J. Int’l & Comp. L. 329, 341 ( 2007)
[175] Id.
[176] Id.
[177] The US department of State, https://www.state.gov/j/tip/rls/tiprpt/(last visited November 9, 2015)
[178] Id.
[179] Id.
[180] Id.
[181] Id.
[182] Id.
[183] Leonard Birdsong (2014-11-20). IMMIGRATION: Obama must act now! (Kindle Locations 828-830). Winghurst Publications. Kindle Edition.
[184] Id.
[185] Current Development: Decriminalization of Prostitution in China, 13 New Eng. J. Int’l & Comp. L. 329,337 (2007)
[186] Id.
[187] Id.
[188] Hendriz, supra note 24, at 174
[189] Id.
[190] Id.
[191] Id.
[192] Id.
[193] Id.
[194] Id.
[195] Birdsong supra note 183 -“The number of persons granted asylum defensively through an immigration court judge or the Board of Immigration Appeals of the EOIR decreased from 10,186 in 2009 to 9,869 in 2010. In 2010 were China (32 percent), Ethiopia (5.2 percent), Haiti (3.9 percent), Venezuela (3.1 percent) and Nepal (3 percent). These five countries accounted for 47 percent of the persons granted asylum. In 2010, the top three countries of nationality for affirmative asylees were China (26 percent), Ethiopia (6.1 percent), and Haiti (5.9 percent) accounting for 38 percent of all persons granted asylum affirmatively In 2012, the leading countries of nationality of persons granted either affirmative or defensive asylum were China (34 percent), Egypt (9.8 percent), Ethiopia (3.8), Venezuela (3.7 percent), and Nepal (3.3 percent). Nationals of these five countries accounted for over half of all person granted asylum. In 2012, the top three countries of nationality for affirmative asylees were China (27 percent), Egypt (15 percent), and Venezuela (5.5 percent). Nationals of these three countries accounted for 48 percent of all persons granted affirmative asylum. The persons granted defensive asylum were from China (45 percent), Ethiopia (3.8 percent), and Nepal (3.4 percent)”
[196] human trafficking victim speaks out, supra note 2
[197] The US Department of State , John F Kerry Secretary of State https://www.state.gov/j/tip/rls/tiprpt/2014/ (last visited November 9, 2015)
[198] United Nations ,Article 5, https://www.un.org/en/universal-declaration-human-rights/index.html (last visited November 9, 2015
