In January 2019, New England Patriots owner Robert Kraft visited a Palm Beach business called Orchids of Asia Day Spa two days in a row. We know this because the day spa was the target of a sting operation, and hidden cameras captured Kraft paying for sex work provided by two women who worked there. The story, and Kraft’s part in it, made headlines for months after the February 2019 bust; by the time the cases were closed in December 2020, however, the public had mostly lost interest. In the end, the multimillionaire’s misdemeanor charges were dropped. None of the 20 other men caught on camera paying for sex were charged. The only people convicted were four Chinese American women who were either employees or owners of Orchids of Asia. Two were convicted, fined $5,000, and ordered to complete 100 hours of community service; the other two made deals with the prosecutor.

It’s the latest coda to an old story—the wealthy pay high-powered lawyers to set them free, and workers lose their freedom and their livelihood. But fully understanding the case against Orchids of Asia requires diving into the world of human-trafficking legislation and the longstanding media frenzy surrounding it. In presenting the Orchids of Asia investigation to the public, Palm Beach Sheriff William Snyder spun a complex story of depraved sexual exploitation: Women were stolen from China, forced to work seven days a week and sleep on massage tables, and have unprotected sex with 1,000 men per year. He deemed it “modern-day slavery” and insisted that the workers would be prosecuted “over [his] dead body.” Clearly, the sheriff had yet to speak with any of the women he had just placed “in protective custody”—had he done so, he would have known that two of them owned the salon and all four had moved to Palm Beach from within the United States, and of their own volition.

This overzealousness to file all sex work under “trafficking” can be traced back to the George W. Bush administration, which established a State Department office to monitor trafficking both domestically and abroad. In 2000, Congress had passed the bipartisan Trafficking Victims Protection Act, which defined trafficking broadly. The morality-focused Bush prioritized combating sex trafficking as a matter of “saving” victimized women, and the result was increased targeting of both consensual sex workers and immigrants who were not trafficked in any meaningful sense of the word. The Obama administration assumed a broader focus, expanding the Bush-era laws beyond sex work and applying them to forced labor of any kind. Many progressive organizations looked positively on this change as an effort to expand laws on “modern-day slavery” into the realm of labor exploitation. However, it was Obama’s human-trafficking task force that focused its attention on “major sex-trafficking hubs”—including South Florida. The results of that work are clear in the Kraft case.

In a 2019 article, Janie Chuang, a law professor at American University, explained the legal history of human trafficking as “exploitation creep” that seeks to “expand previously narrow legal categories—at least in terms of rhetoric and policy, but in some cases also in hard law—in a strategic bid to subject a broader range of practices to a greater amount of public opprobrium.” In other words, lawmakers, some of whom have very good intentions, use trafficking laws to cast a wider net of prosecution and limit avenues for the abuse of the vulnerable. This results in some messiness: The term “trafficking” can involve any kind of forced labor, yet seems to be applied to sex work more often than not, despite the fact that it is much less common than other kinds of labor exploitation. (New York’s Human Trafficking Intervention courts, for example, exclusively hear cases involving the sex trade.) According to Chuang, U.S. law enforcement often refers to any forced labor as trafficking “even if no one changes location at all,” and, in turn, frames any form of trafficking as slavery. Conveniently, she points out, funneling all smuggling and forced-labor cases into trafficking convictions allows U.S. immigration and labor laws to evade close inspection: Instead of questioning why people pay exorbitant prices to be smuggled into the country—or why those already here may need to work low-wage, exploitative jobs—the justice system can simply point to a handful of individual traffickers as perpetrators.

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A Man Walks Into a Day Spa by Nora Salem

Jan 6, 2021