Victims of Trafficking, Reproductive Rights, and Asylum Page 1 of 16 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). (c) Oxford University Press, 2015. All Rights Reserved. Under the terms of the l icence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy). Subscriber: OUP-Reference Gratis Access; date: 27 January 2016 Subject: Philosophy,	Social	and	Political	Philosophy,	Moral Philosophy, Online	Publication	Date: Jan 2016 DOI: 10.1093/oxfordhb/9780199981878.013.5 Victims	of	Trafficking,	Reproductive	Rights,	and	Asylum Diana	Tietjens	Meyers The	Oxford	Handbook	of	Reproductive	Ethics Edited	by	Leslie	Francis Oxford	Handbooks	Online Abstract	and	Keywords Sex	trafficking	is	a	crime	prohibited	by	international	law.	Traffickers	not	only	violate	victims'	rights	to	liberty	and	security of	persons;	they	also	violate	victims'	reproductive	rights	with	potentially	devastating	consequences	for	their	health	and reproductive	capabilities.	Nonetheless,	international	antitrafficking	and	refugee	law	presents	obstacles	to	viewing trafficking	victims	as	refugees	and	granting	them	asylum.	International	law	spotlights	the	crime	of	trafficking	in	persons and	treats	the	human	rights	of	victims	as	an	ancillary	matter,	and	domestic	laws	follow	suit.	However,	a	number	of precedents	in	international	and	domestic	law	support	construing	trafficking	victims	as	coming	under	refugee	law	and private	oppression	as	included	within	refugee	law.	The	chapter	concludes	by	outlining	arguments	from	reproductive rights	to	expand	asylum	rights	to	sex	trafficking	victims. Keywords:	sex	trafficking,	reproductive	rights,	refugee,	asylum,	human	rights The	aim	of	this	chapter	is	to	extend	and	complement	the	compelling	arguments	that	others	have	already	made	for	the claim	that	women	who	are	citizens	of	economically	disadvantaged	states	and	who	have	been	trafficked	into	sex	work	in economically	advantaged	states	should	be	considered	candidates	for	asylum.	These	arguments	cite	the	sexual	violence and	forced	labor	that	trafficked	women	are	subjected	to	along	with	their	well-founded	fear	of	persecution- stigmatization,	social	ostracism,	and	retrafficking-if	they	are	repatriated. What	has	not	been	considered	is	that reproductive	rights	are	also	at	stake.	This	chapter	explains	how	reproductive	rights	are	implicated	in	sex	trafficking. Moreover,	it	contends	that	sex	traffickers'	abuse	of	women's	reproductive	rights	is	persecutory	and	that	this	persecutory abuse	obliges	destination	states	to	offer	asylum	to	transnational	trafficking	victims. I	start	by	tracing	the	emergence	and	encoding	of	reproductive	rights	doctrine	in	international	human	rights	instruments.	I then	examine	studies	of	women	who	are	in	posttrafficking	recovery	programs	in	order	to	ascertain	the	impact	of	their past	experience	of	forced	sex	work	on	their	reproductive	freedom	and	health.	On	the	basis	of	these	findings,	I	maintain that,	among	other	outrages,	sex	trafficking	systematically	violates	victims'	reproductive	human	rights.	In	view	of	this abuse,	women	trafficked	into	sex	work	might	seem	to	be	prime	candidates	for	asylum	in	destination	states.	Yet economically	well-off	destination	states	are	not	particularly	receptive	to	this	idea,	and	international	law	provides	some justification	for	their	chilliness.	Preliminary	to	challenging	them,	I	explicate	four	ways	in	which	international	antitrafficking law	and	international	refugee	law	interfere	with	viewing	women	trafficked	into	sex	work	as	refugees	and	approving	their applications	for	asylum. The	second	half	of	this	chapter	undertakes	to	overcome	those	legal	obstacles.	In	the	interest	of	parsimony	and	because there	are	many	continuities	between	US	refugee	law	and	antitrafficking	law	and	the	policies	of	similar	destination	states,	I focus	mainly	on	the	United	States	in	this	part	of	the	chapter.	To	anchor	my	argument,	I	spotlight	two	precedents	in refugee	law	for	taking	reproductive	human	rights	seriously	and	several	precedents	for	treating	trafficked	women	as members	of	a	distinct	social	group	as	required	by	refugee	law.	I	then	urge	that	a	law	enforcement	gestalt	has	gained undue	influence	over	US	legal	practices	where	antitrafficking	law	intersects	with	refugee	protection	law.	A	human	rights 1 Victims of Trafficking, Reproductive Rights, and Asylum Page 2 of 16 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). (c) Oxford University Press, 2015. All Rights Reserved. Under the terms of the l icence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy). Subscriber: OUP-Reference Gratis Access; date: 27 January 2016 gestalt	is	needed	as	a	counterweight,	for	otherwise	victims	of	sex	trafficking	and	the	reproductive	abuse	they	have suffered	are	erased.	Taking	up	a	human	rights	perspective	and	mobilizing	precedents,	I	show	that	respecting	the reproductive	human	rights	of	women	who	have	been	trafficked	into	sex	work	entails	that	affluent	destination	states	must recognize	their	right	to	asylum. The	ethical	obligations	of	destination	states	that	flow	from	this	conclusion	are	twofold.	First,	it	is	incumbent	on	destination states,	especially	those	that	encourage	sex	trafficking	by	providing	strong	markets	for	paid	sex	work	and	little	deterrence to	sex	traffickers,	to	offer	an	effective	remedy	to	women	victimized	by	transnational	criminal	organizations	operating	in their	territory.	Because	the	principal	remedies	that	they	have	at	their	disposal	are	asylum	and	medical	care,	there	is	an ethical	imperative	to	recognize	traffickers'	violation	of	the	reproductive	rights	of	trafficked	sex	workers	as	a	form	of persecution,	to	amend	antitrafficking	legislation	to	secure	the	right	to	asylum	for	sex	trafficking	victims,	and	to	link refugee	status	to	appropriate	remedial	health	care.	Second,	there	is	an	ethical	imperative	to	ensure	that	immigration judges	evaluate	asylum	claims	advanced	by	trafficked	women	on	their	merits.	But	the	conditions	in	which	immigration judges	work	make	them	susceptible	to	being	swayed	by	commonplace	implicit	biases	against	undocumented	migrants, against	poor	women	of	childbearing	age,	and	against	sex	workers.	To	curb	these	subconscious	attitudes,	I	advocate reforming	the	institutions	in	which	asylum	cases	are	adjudicated	in	several	respects.	Without	these	reforms,	equitable statutory	remedies	for	women	trafficked	into	sex	work	may	come	to	nothing	because	of	the	illicit	impact	of	implicit	biases against	trafficked	asylum	seekers.	Both	legislative	and	procedural	reforms	are	vital	to	realizing	women's	reproductive human	rights. A	Brief	History	of	Reproductive	Human	Rights Reproductive	rights	have	figured	in	the	human	rights	regime	from	the	beginning.	Article	16	of	the	Universal	Declaration of	Human	Rights	states	that	"men	and	women	of	full	age	...	have	the	right	to	marry	and	found	a	family."	Subsequent covenants	that	transformed	the	aspirations	of	the	Universal	Declaration	into	international	law	amplify	on	this	theme.	Both the	International	Covenant	on	Civil	and	Political	Rights	and	the	International	Covenant	on	Economic,	Social,	and	Cultural Rights	reaffirm	the	right	to	marry	and	have	children.	Article	10	of	the	Covenant	on	Economic,	Social,	and	Cultural	Rights adds	that	working	mothers	should	receive	paid	leave	from	work	or	leave	with	social	security	benefits	before	and	after	the birth	of	a	child.	Article	12,	which	recognizes	the	right	to	the	"highest	attainable	standard	of	physical	and	mental	health," also	calls	for	the	"reduction	of	the	still-birth	rate	and	of	infant	mortality."	Prenatal	care	for	pregnant	women,	safe	birthing conditions,	and	adequate	preand	postnatal	maternal	nutrition	are	indispensable	to	achieving	these	aims.	This acknowledgment	of	gender	difference	and	women's	specific	role	in	reproduction	is	exceptional	in	the	early	development of	human	rights	law.	Perversely,	the	only	other	explicit	affirmation	of	women's	reproductive	rights	in	these	founding covenants	provides	for	stays	of	death	sentences	for	pregnant	women	(ICPR,	Art.	6,	Sec.	5). It	was	not	until	late	in	the	1970s	that	women's	reproductive	rights	gained	the	attention	they	deserve	in	the	arena	of international	law.	CEDAW,	the	Convention	on	the	Elimination	of	All	Forms	of	Discrimination	Against	Women,	articulates	a number	of	reproductive	rights.	With	respect	to	employment,	CEDAW	emphasizes	that	workplaces	should	be	safe	for women	in	their	reproductive	years	and	during	workers'	pregnancies,	that	terminating	pregnant	employees	is impermissible,	and	that	provisions	must	be	made	for	paid	maternity	leave	or	comparable	social	security	benefits	for working	women	(Art.	11).	For	the	first	time,	the	topic	of	family	planning	is	featured	prominently	in	a	legally	binding	human rights	document.	According	to	CEDAW,	health	care	services	must	include	provision	of	family	planning	methods	(Art.	12), and	rural	women	must	have	access	to	the	same	information	about	and	access	to	family	planning	techniques	as	urban women	(Art.	14).	After	reiterating	the	right	to	consensual	marriage,	Article	16	declares	women's	all-important	right	"to decide	freely	and	responsibly	on	the	number	and	spacing	of	their	children	and	to	have	access	to	the	information, education,	and	means	to	exercise	these	rights."	Whereas	previous	thinking	about	reproductive	rights	had	focused	on protecting	women's	reproductive	health	and	function,	CEDAW	finally	affirms	women's	right	to	reproductive	freedom	and self-determination. The	right	to	found	a	family	together	with	the	right	to	reproductive	health-for	most	women,	this	is	necessary	as	a	means to	exercising	the	former	right-is	well	established	in	human	rights	law.	Although	controversial	in	some	quarters,	the	right to	reproductive	freedom	has	been	steadily	upheld	in	documents	issued	by	international	conferences	on	population	and development	and	women's	rights	as	human	rights. Moreover,	these	consensus	documents	explicitly	urge	destination nations	to	extend	full	reproductive	rights	to	migrants	regardless	of	their	legal	status. Although	the	United	States	is	not	a State	Party	to	the	International	Covenant	on	Economic,	Social,	and	Cultural	Rights,	and	it	is	one	of	the	seven	nations 2 3 4 Victims of Trafficking, Reproductive Rights, and Asylum Page 3 of 16 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). (c) Oxford University Press, 2015. All Rights Reserved. Under the terms of the l icence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy). Subscriber: OUP-Reference Gratis Access; date: 27 January 2016 worldwide	that	are	not	States	Parties	to	CEDAW,	in	practice	the	United	States	realizes	at	least	as	many	of	women's reproductive	rights	as	many	of	the	States	Parties	to	all	of	the	treaties	that	encode	these	rights.	I	argue	that	fully	realizing women's	reproductive	rights	and	eliminating	inconsistencies	in	US	law	entail	modifications	in	US	refugee	law	with	respect to	victims	of	transnational	sex	trafficking	as	well	as	extending	the	right	to	reproductive	health	to	these	women. Sex	Trafficking	and	Reproductive	Health No	one	has	accurate	information	about	reproductive	health	outcomes	resulting	from	sex	trafficking	because	all	welldesigned	studies	are	based	on	interviews	with	women	who	are	receiving	rehabilitative	services	and	reviews	of	their medical	records.	These	women	represent	a	tiny	minority	of	trafficked	women.	However,	there	is	little	reason	to	doubt that	complete	data	would	disclose	at	least	as	severe	a	problem.	After	all,	whatever	proportion	of	women	who	have	left forced	sex	work	with	previously	untreated,	fertility-threatening	sexually	transmitted	infections	(STIs)	and	whatever proportion	of	women	who	have	left	forced	sex	work	and	report	undergoing	forced	abortions,	the	proportions	are	likely to	be	greatly	magnified	the	longer	women	are	trapped	in	trafficking	schemes. Two	widely	cited,	Coalition	Against	Trafficking	in	Women	(CATW)–sponsored	studies	of	the	reproductive	health consequences	of	sex	trafficking	rely	on	data	collected	from	female	sex	workers	with	no	attention	to	possible	differences between	trafficked	and	voluntary	sex	workers	or	between	settings	in	which	sex	work	is	legal	and	settings	in	which	it	is criminalized. Forced	sex	work	is	always	illegal	under	international	law.	The	2000	UN	"Protocol	to	Prevent,	Suppress	and Punish	Trafficking	in	Persons,	Especially	Women	and	Children,	Supplementing	the	United	Nations	Convention	Against Transnational	Organized	Crime,"	often	called	the	Palermo	Protocol,	defines	trafficking	in	persons	as: the	recruitment,	transportation,	transfer,	harbouring	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. The	protocol	goes	on	to	specifically	include	sexual	exploitation.	Thus,	trafficked	sex	workers	have	been	tricked	or coerced	in	the	recruitment	and	relocation	process,	held	in	debt	bondage	or	imprisoned	in	brothels	at	their	destinations, or	both.	In	what	follows,	I	rely	on	studies	that	take	care	to	distinguish	voluntary	sex	work	from	forced	sex	work	and	to collect	data	exclusively	from	survivors	of	sex	trafficking. Stolen	Smiles,	an	omnibus	study	of	the	health	consequences	for	eastern	European	women	trafficked	into	sex	work	in western	Europe,	reports	that	the	single	biggest	concern	of	women	in	posttrafficking	treatment	programs	is	their	future fertility. Although	the	study	denies	that	infertility	is	an	inevitable	consequence	of	forced	sex	work,	it	also	acknowledges that	the	women's	fears	are	warranted. Only	38%	of	the	women	report	consistent	use	of	condoms,	but	the	authors	of	the study	suspect	that	this	percentage	is	inflated	because	29%	of	the	women	in	this	cohort	had	contracted	STIs. Nor	did many	of	them	receive	medical	care	befitting	the	risky	nature	of	their	work.	Medical	care	mainly	took	the	form	of abortions-a	procedure	that	greatly	benefits	traffickers	and	that	these	trafficked	women	also	value. Unsurprisingly, though,	abortions	augmented	the	dangers	to	these	women's	reproductive	health	because	they	were	often	performed	by unqualified	practitioners	in	unsanitary	environments. Likewise,	untreated	chlamydia,	pelvic	inflammatory	disease,	and HIV	threaten	trafficked	women's	fertility,	as	do	ectopic	pregnancies. Although	Stolen	Smiles	is	upbeat	about	some	of the	benefits	of	posttrafficking	medical	intervention,	the	study's	concluding	observation	is	grim:	"Infertility	and	other resulting	complications,	including	cervical	cancer,	may	be	the	unalterable	personal	legacies	of	their	nightmare." In violating	women's	right	to	reproductive	self-determination,	sex	traffickers	violate	their	right	to	reproductive	health. A	study	that	documents	the	reproductive	health	experiences	of	Nigerian	women	trafficked	into	sex	work	reports	similar but	less	detailed	findings.	Sixty-nine	percent	of	the	women	contracted	STIs,	and	the	investigators	stress	that	if	left untreated,	STIs	can	lead	to	pelvic	inflammatory	disease,	ectopic	pregnancy,	and	infertility. Ninety-one	percent	of	the women	in	the	study	said	they	had	no	access	to	birth	control. In	a	statistic	that	is	somewhat	puzzling	in	light	of	the previous	one,	80%	of	the	women	said	their	traffickers	forced	them	to	have	abortions	or	forced	them	to	use contraceptives. Perhaps	this	statistic	breaks	down	as	follows:	The	percentage	of	this	cohort	that	was	forced	to	use contraceptives	was	very	small,	and	the	percentage	that	was	forced	to	undergo	abortions	was	very	large.	If	so,	the seeming	tension	between	the	claim	that	91%	of	the	women	were	not	provided	with	contraceptives	and	the	claim	that	an unspecified	percentage	of	the	women	in	the	study	were	forced	to	use	contraceptives	would	be	resolved.	The	key	point, however,	is	that	regardless	of	whether	women	are	procured	in	Eastern	Europe	or	sub-Saharan	Africa,	sex	traffickers 5 6 7 8 9 10 11 12 13 14 15 16 Victims of Trafficking, Reproductive Rights, and Asylum Page 4 of 16 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). (c) Oxford University Press, 2015. All Rights Reserved. Under the terms of the l icence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy). Subscriber: OUP-Reference Gratis Access; date: 27 January 2016 trample	on	their	human	rights	to	reproductive	self-determination	and	reproductive	health.	There	is	no	reason	to	believe that	the	reproductive	rights	of	women	trafficked	from	other	regions	fare	better. Women	Trafficked	Into	Sex	Work	as	Candidates	for	Asylum The	purpose	of	recognizing	refugees	and	granting	asylum	to	them	is	to	protect	people	from	persecution.	The	1951 Geneva	Convention	Relating	to	the	Status	of	Refugees	defines	a	refugee	as	a	person	who	"owing	to	well-founded	fear	of being	persecuted	for	reasons	of	race,	religion,	nationality,	membership	of	a	particular	social	group	or	political	opinion,	is outside	the	country	of	his	[sic]	nationality	and	is	unable	or,	owing	to	such	fear,	is	unwilling	to	avail	himself	[sic]	of	the protection	of	that	country." The	convention	never	defines	persecution.	But	it	is	clear	that	refugees	are	fleeing	a credible	and	wrongful	threat	of	severe	harm	in	their	homeland,	a	threat	that	targets	them	because	of	their	adverse positioning	in	a	stratified	social	system	or	their	opposition	to	the	state.	Moreover,	were	they	to	return	to	their	homeland, they	would	in	all	likelihood	be	subjected	to	renewed	persecution. From	one	angle,	women	trafficked	into	sex	work	seem	like	prime	candidates	for	refugee	status	and	asylum.	Widely	cited legal	scholar	James	Hathaway	defines	persecution	as	"a	sustained	or	systemic	violation	of	basic	human	rights demonstrative	of	a	failure	of	state	protection." By	definition,	sex	trafficking	organizations	violate	their	victims'	rights	to liberty	and	reproductive	self-determination.	In	colloquial	terms,	trafficked	sex	workers	are	sex	slaves-their	bodies	are under	the	control	of	their	traffickers	and	their	customers.	Moreover,	the	abusive	conditions	in	which	trafficked	women are	compelled	to	perform	sexual	services	and	the	scarcity	of	medical	services	provided	to	them	put	their	reproductive health	and	thus	their	right	to	found	a	family	in	jeopardy.	These	sustained	violations	of	basic	human	rights	notwithstanding, there	are	major	obstacles	to	classifying	trafficked	sex	workers	as	refugees. Call	the	first	obstacle	the	"smuggled	woman"	problem.	A	growing	social	scientific	literature	reveals	that	most	adult women	trafficked	into	sex	work	are	also	economic	migrants-that	is,	they	have	knowingly	availed	themselves	of	trafficking networks	in	order	to	be	smuggled	into	more	prosperous	nations	in	the	hope	of	economic	betterment.	According	to	Dina Haynes,	"Victims	of	human	trafficking	are	people	who	[were]	determined	to	improve	their	lives	but	had	that	desire exploited." Likewise,	Louisa	Waugh	points	out	that	women	in	posttrafficking	recovery	programs	think	of	themselves	as "migrants	who'd	been	brutalized	because	they'd	had	to	resort	to	desperate	measures." Thus,	many	trafficking scenarios	start	with	a	smuggling	scenario.	The	would-be	migrants	are	neither	naïve	country	girls,	nor	are	they	duped about	their	employment	prospects	abroad. Rather,	they	are	extremely	poor	women	who	have	no	job	opportunities sufficient	to	meet	their	needs	(often	family	members'	needs	as	well)	in	their	home	countries. Seeking	a	solution,	they allow	themselves	to	be	recruited	by	known	traffickers	in	order	to	obtain	fake	travel	documents	and	assistance	in	crossing otherwise	closed	borders,	all	the	while	hoping	to	escape	from	poverty. When	they	reach	their	destinations,	they	are forced	into	prostitution. In	many	host	countries,	however,	their	cooperation	with	transnational	criminal	gangs	in	the	procurement	and	transport process	earns	them	the	label	"smuggled,"	an	epithet	that	excludes	them	from	the	category	"trafficked."	In	the	United States,	for	example,	the	Trafficking	Victims	Protection	Act	of	2000	mandates	procedures	for	handling	alleged	trafficking cases	and	for	providing	benefits	to	individuals	certified	as	trafficking	victims.	Under	the	TVPA,	qualifying	for	benefits comparable	to	those	provided	to	refugees	is	contingent	on	being	certified	as	"severely	trafficked."	But	to	obtain certification,	a	female	foreign	national	working	in	the	US	sex	industry	is	for	all	practical	purposes	required	to	prove	that she	was	kidnapped	by,	sold	to,	or	deceived	by	a	trafficker	at	her	point	of	origin. If	certified	as	a	victim	of	severe trafficking,	the	applicant	may	apply	for	a	T	visa,	which	can	but	does	not	automatically	lead	to	permanent	residence. Although	application	numbers	and	rates	of	approval	for	T	visas	have	increased	markedly	since	the	inception	of	the program,	government	statistics	do	not	differentiate	between	applications	from	women	trafficked	into	sex	work	and individuals	trafficked	for	other	types	of	labor. Moreover,	the	number	of	T	visas	granted	is	tiny	compared	to	estimates	of the	number	of	women	trafficked	for	sex	work	in	the	United	States. Disappointing	as	these	numbers	are,	they	are unsurprising,	for	as	we	have	seen,	few	of	the	women	doing	forced	sex	work	are	brought	to	their	destinations	through force	or	fraud.	Absent	certification	as	a	severely	trafficked	person,	trafficked	sex	workers	apprehended	by	law enforcement	officers	are	relegated	to	the	status	of	undocumented	migrants	and	processed	for	deportation	despite	being forced	to	perform	commercial	sexual	services	in	the	United	States. Consent	at	any	stage	of	a	woman's	journey	into forced	sex	work	nullifies	her	claim	to	be	severely	trafficked. Call	the	second	obstacle	the	"crime	stopper"	problem.	What	I	have	already	stated	about	US	policy	regarding	trafficking 17 18 19 20 21 22 23 24 25 26 27 28 Victims of Trafficking, Reproductive Rights, and Asylum Page 5 of 16 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). (c) Oxford University Press, 2015. All Rights Reserved. Under the terms of the l icence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy). Subscriber: OUP-Reference Gratis Access; date: 27 January 2016 victims	adumbrates	this	additional	obstacle.	As	the	official	title	of	the	UN	protocol	on	trafficking	implies,	international	law views	trafficking	in	persons	first	and	foremost	as	an	issue	concerning	catching	and	punishing	transnational	criminals	as opposed	to	an	issue	concerning	the	human	rights	of	trafficking	victims.	Arresting	and	prosecuting	traffickers	are prioritized	over	rectifying	the	wrongs	done	to	trafficked	victims	of	human	rights	abuse.	Thus,	international	law	obliges states	to	pass	antitrafficking	legislation	independent	of	refugee	law.	The	annual	US	Trafficking	in	Persons	Report	and	the favorable	treatment	accorded	countries	that	score	well	on	prosecuting	traffickers	reinforce	this	orientation.	One	result	is that	women	who	claim	to	have	been	trafficked	into	sex	work	are	funneled	into	the	criminal	law	apparatus-in	the	United States	they	must	agree	to	cooperate	with	prosecutors	pursuing	cases	against	traffickers-and	into	a	special	system	of accreditation	for	extended	residence	that	need	not	conform	to	established	criteria	for	gaining	asylum.	Indeed,	the	criteria for	obtaining	a	T	visa	in	the	United	States	are	more	difficult	to	satisfy	than	those	that	asylum	seekers	must	meet. By splitting	antitrafficking	law	away	from	human	rights	law	and	segregating	sex	trafficking	victims	from	refugees,	the	legal system	closes	off	the	human	rights	remedy	par	excellence-namely,	asylum. Call	the	third	obstacle	the	"social	group"	problem.	To	qualify	for	refugee	status,	the	Geneva	Convention	states,	you	must be	persecuted	"for	reasons	of	race,	religion,	nationality,	membership	of	a	particular	social	group	or	political	opinion." Unfortunately,	sex	traffickers	appear	to	be	equal	opportunity	predators.	They	do	not	target	women	on	account	of	their race,	religion,	or	nationality	and	certainly	not	on	account	of	their	political	views.	Nevertheless,	there	are	patterns	of vulnerability	that	are	typical	of	trafficked	sex	workers.	They	commonly	report	a	history	of	domestic	violence,	alcoholic	or absent	husbands,	children	to	support,	jobs	lost	and	ensuing	debt,	and/or	insufficient	income	to	pay	for	housing	and	other essential	expenses;	they	come	from	regions	where	women	do	not	enjoy	equal	rights	and	that	are	undergoing	economic turmoil	coupled	with	deepening	poverty. Still,	an	asylum	claimant	must	be	persecuted	because	she	is	a	member	of	a distinct	social	group,	and	delineating	such	a	social	group	for	women	forced	into	sex	work	poses	a	challenge. Although	persecution	on	account	of	gender	is	a	recognized	ground	for	refugee	status,	the	category	"women"	is	too broad	to	characterize	the	individuals	persecuted	by	sex	traffickers.	Yet	the	social	group	consisting	of	women	forced	into sex	work	or	at	risk	of	being	forced	into	sex	work	is	unacceptable	because	it	is	circular-it	defines	the	group	targeted	for persecution	as	those	who	have	been	persecuted	in	a	particular	way	or	are	vulnerable	to	that	type	of	persecution. If	the diverse	women	trafficked	into	sex	work	are	to	gain	access	to	the	refugee	system,	the	group(s)	to	which	they	belong must,	on	the	one	hand,	be	demarcated	narrowly	enough	to	exclude	women	who	are	not	targeted	by	traffickers	and	must, on	the	other	hand,	be	demarcated	independently	of	being	targeted	by	traffickers.	Under	US	law	and	in	line	with	the UNHCR's	guidelines,	a	cognizable	social	group	is	one	whose	members	"share	a	common,	immutable	characteristic,	i.e., a	characteristic	that	either	is	beyond	the	power	of	the	individual	members	of	the	group	to	change	or	is	so	fundamental	to their	identities	or	consciences	that	it	ought	not	be	required	to	be	changed." Call	the	last	and	least	of	the	obstacles	the	"government	role"	problem.	Recall	that	the	Geneva	Convention	requires	a refugee	to	be	"unable	or	...	unwilling	to	avail	himself	[sic]	of	the	protection"	of	the	state	she	has	fled,	and	Hathaway contends	that	persecutory	harms	must	be	"demonstrative	of	a	failure	of	state	protection."	Accordingly,	paradigmatic cases	of	persecution	are	situations	in	which	the	state	or	an	agent	of	the	state	inflicts	or	threatens	to	inflict	harm	rising	to the	level	of	persecution.	But	transnational	trafficking	gangs	are	not	government	institutions	or	agents	appointed	to	act	on behalf	of	government	institutions.	Consequently,	it	is	not	obvious	that	they	can	count	as	persecutors,	and	if	they	do	not count	as	persecutors,	the	women	whose	rights	they	violate	cannot	count	as	refugees	and	are	not	eligible	for	asylum. Fortunately,	recent	advances	in	refugee	law	render	this	problem	more	tractable	than	the	others	I	have	enumerated.	In the	United	States,	for	example,	the	persecutor	can	be	"persons	or	an	organization	that	the	government	was	unable	or unwilling	to	control." Thus,	a	showing	that	transnational	trafficking	organizations	operate	with	impunity	or	with	the complicity	of	corrupt	government	officials	in	a	trafficked	woman's	home	country	suffices	to	establish	the	requisite government	role	in	the	persecution.	And	it	is	often	uncontroversial	that	sending	states	have	no	power	or	wish	to	rein	in trafficking. Precedents	for	Asylum	for	Women	Trafficked	Into	Sex	Work As	I	have	pointed	out,	there	is	an	international	convention	governing	the	treatment	of	refugees.	For	better	or	worse, implementation	of	the	convention	is	left	to	each	signatory	state.	As	a	result,	there	is	considerable	variation	in	the	refugee legislation	and	judicial	history	of	different	States	Parties.	In	the	interest	of	parsimony,	but	with	the	caveat	that	uniformity	is not	to	be	found	in	this	evolving	and	state-relative	area	of	law,	I	will	focus	on	US	refugee	law	while	occasionally	noting 29 30 31 32 33 Victims of Trafficking, Reproductive Rights, and Asylum Page 6 of 16 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). (c) Oxford University Press, 2015. All Rights Reserved. Under the terms of the l icence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy). Subscriber: OUP-Reference Gratis Access; date: 27 January 2016 what	I	take	to	be	more	equitable	policies	elsewhere. In	1996,	the	United	States	enacted	legislation	that	directly	addresses,	albeit	somewhat	obliquely,	one	aspect	of	the reproductive	rights	of	migrants.	section	601	of	the	Illegal	Immigration	Reform	and	Immigrant	Responsibility	Act	makes	a special	allowance	for	certain	victims	of	reproductive	rights	abuse: A	person	who	has	been	forced	to	abort	a	pregnancy	or	to	undergo	involuntary	sterilization,	or	who	has	been persecuted	for	failure	or	refusal	to	undergo	such	a	procedure	or	for	other	resistance	to	a	coercive	population control	program,	shall	be	deemed	to	have	been	persecuted	on	account	of	political	opinion,	and	a	person	who has	a	well	founded	fear	that	he	or	she	will	be	forced	to	undergo	such	a	procedure	or	subject	to	persecution	for such	failure,	refusal	or	resistance	shall	be	deemed	to	have	a	well	founded	fear	of	persecution	on	account	of political	opinion. Section	601	grants	preferential	treatment	to	those	victims	of	reproductive	rights	abuse	whose	reproductive	rights	have been	violated	in	the	context	of	a	coercive	population	control	policy.	In	singling	out	this	subset	of	victims,	the	law discounts	the	primary	reason	for	ensuring	access	to	the	right	to	asylum	in	cases	of	persecutory	reproductive	rights abuse.	To	wit,	coerced	abortion	and	sterilization	violate	the	right	to	bodily	integrity	that	underwrites	the	right	not	to	be tortured	or	subjected	to	cruel,	inhuman,	or	degrading	treatment. Section	601	seems	to	have	its	moral	priorities	upside	down	and	its	psychology	muddled.	The	provision	exempts	any Chinese	person	(men	are	often	the	beneficiaries	of	this	provision)	who	has	been	forced	to	undergo	an	abortion	or sterilization	procedure	or	fears	being	forced	to	do	so	from	proving	persecution	on	account	of	her	political	opinion. Yet the	proximate	wrong	would	seem	to	be	being	subjected	to	a	nonconsensual	medical	procedure.	Ever	since	the revelations	that	Nazi	doctors	performed	sadistic	experiments	on	concentration	camp	inmates,	nonconsensual	medical procedures	have	been	considered	anathema	to	human	rights.	Yet	Section	601	identifies	the	principal	wrong	as	a	violation of	freedom	of	conscience	and	the	intrusion	on	bodily	integrity	as	secondary.	Unless	nonconsensual	abortion	or sterilization	is	performed	pursuant	to	a	government's	population	control	program,	Section	601	provides	no	remedy. Furthermore,	for	many	Chinese	couples,	especially	in	rural,	agricultural	China,	having	more	than	one	child	is	an economic	imperative	or	is	dictated	by	the	cultural	value	placed	on	begetting	a	son.	It	is	odd,	then,	that	Congress	instructs the	Immigration	and	Naturalization	Service	(INS)	to	project	dissident	political	opinions	onto	people	who	may	have	quite different	reasons	for	their	resistance.	What	Section	601	fails	to	acknowledge	is	that	the	right	to	reproductive	selfdetermination-the	entitlement	to	choose	whether	and	when	to	have	children-is	not	contingent	on	people's	reasons	for exercising	it.	Even	so,	US	hospitality	to	these	ostensible	political	dissenters	is	limited,	for	Section	601	allows	only	1,000	of them	to	be	granted	asylum	in	each	fiscal	year. In	view	of	the	persistence	of	uneasy	relations	between	China	and	the	United	States,	China's	one-child	policy,	and	residual opposition	to	abortion	rights	in	the	United	States,	Section	601	appears	to	be	an	extension	of	US	foreign	policy	and	a	sop to	a	US	voting	bloc	that	incidentally	fulfills	international	human	rights	law.	Nevertheless,	it	amounts	to	a	fissure	in	US defenses	against	recognizing	reproductive	human	rights	for	purposes	of	refugee	law	that	I	propose	to	exploit	in	the	next section. The	groundbreaking	US	Board	of	Immigration	Appeals	(BIA)	decision	In	Re	Fauziya	Kasinga	(1996,	hereafter	Matter	of Kasinga)	furnishes	another	precedent	pertinent	to	the	availability	of	asylum	as	a	remedy	for	reproductive	rights	abuse. Matter	of	Kasinga	considers	the	application	of	a	19-year-old	woman	from	Togo	whose	father	had	protected	her	from female	genital	mutilation	(FGM)	but	whose	relatives	demanded	that	she	undergo	the	procedure	after	her	father	passed away.	I	will	skip	over	the	details	of	her	flight.	What	is	crucial	is	that	she	requested	asylum	upon	arrival	in	the	United	States. Although	initially	denied,	the	BIA	granted	her	request	on	several	grounds: FGM	is	extremely	painful	and	at	least	temporarily	incapacitating.	It	permanently	disfigures	the	female	genitalia. FGM	exposes	the	girl	or	woman	to	the	risk	of	serious,	potentially	life-threatening	complications.	These	include, among	others,	bleeding,	infection,	urine	retention,	stress,	shock,	psychological	trauma,	and	damage	to	the urethra	and	anus.	It	can	result	in	permanent	loss	of	genital	sensation	and	can	adversely	affect	sexual	and	erotic functions. Binaifer	Davar,	who	helped	to	write	the	INS	guidelines	"Considerations	for	Asylum	Officers	Adjudicating	Asylum	Claims From	Women"	(1995),	sums	up	the	Kasinga	ruling	as	an	"unprecedented	recognition	and	protection	of	a	woman's	right to	bodily	and	sexual	identity." She	then	proceeds	to	argue	that	Matter	of	Kasinga	sets	the	stage	for	a	full	appreciation 34 35 36 37 38 Victims of Trafficking, Reproductive Rights, and Asylum Page 7 of 16 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). (c) Oxford University Press, 2015. All Rights Reserved. Under the terms of the l icence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy). Subscriber: OUP-Reference Gratis Access; date: 27 January 2016 in	US	refugee	law	of	the	significance	of	the	wrong	of	sexual	violence	and	its	links	to	violations	of	reproductive	rights	as well	as	the	right	to	bodily	and	sexual	integrity. Davar	condemns	trafficking	as	a	violation	of	the	right	to	bodily	and	sexual integrity.	Additionally,	she	underscores	the	attention	paid	in	Matter	of	Kasinga	to	the	harmful	health	consequences	of FGM,	and	she	points	out	that	sex	trafficking	inflicts	comparable	harms	on	women. Still,	there	is	a	noteworthy	oversight in	her	argument.	Although	Davar	places	violations	of	reproductive	rights	under	the	umbrella	of	sexual	violence,	she	does not	make	the	connection	between	sex	trafficking	and	violations	of	reproductive	rights.	I	will	make	a	case	for	that connection	in	the	next	section. The	evidence	suggests	that	granting	asylum	to	sex	trafficking	victims	is	by	no	means	a	growing	trend. Nevertheless, there	are	US,	UK,	and	Canadian	cases	in	which	victims	of	sex	trafficking	have	been	granted	asylum. The	US	case	is another	slap	at	China's	human	rights	record.	A	Chinese	woman	who	was	trafficked	for	sex	work	within	China	reached	the United	States,	where	she	applied	for	and	was	granted	asylum.	The	decision	in	the	case	notes	that	she	would	be vulnerable	to	retrafficking	if	repatriated	to	China.	The	particular	social	group	to	which	she	belongs	and	which	provides another	part	of	the	justification	for	granting	her	asylum	is	"women	in	China	who	oppose	coerced	involvement	in government	sanctioned	prostitution." Again,	the	case	appears	to	pivot	on	a	political	opinion	ascribed	to	the	applicant while	the	harms	of	forced	sex	work	and	the	attendant	violations	of	human	rights	are	consigned	to	the	periphery. The	UK	case	seems	less	in	thrall	to	ulterior	geopolitical	posturing	and	convoluted	analysis.	It	concerns	a	Ukrainian woman	who	had	been	trafficked	into	Hungary	for	sex	work,	who	escaped	and	returned	to	the	Ukraine,	but	who	then	fled to	the	United	Kingdom	and	sought	asylum	there.	This	case	also	recognizes	that	the	woman	would	be	in	danger	of resumed	persecution	by	criminal	gangs	that	traffic	in	women	if	returned	to	the	Ukraine,	and	it	defines	the	particular	social group	to	which	she	belongs	and	on	account	of	which	she	was	initially	trafficked	as	"women	in	Ukraine	who	are	forced into	prostitution	against	her	will." As	glad	as	I	am	that	the	United	Kingdom	provided	a	safe	haven	for	this	woman,	I	am skeptical	that	this	decision	supplies	a	strong	precedent	for	future	asylum	cases	stemming	from	sex	trafficking.	Its definition	of	the	particular	social	group	on	account	of	which	the	victim	was	persecuted	is	vulnerable	to	the	charge	of circularity,	for	it	cites	gender	only	in	conjunction	with	persecution	by	sex	trafficking	to	define	the	particular	social	group. The	Canadian	case	furnishes	a	potentially	far-reaching	precedent	for	granting	asylum	to	trafficked	women.	This	decision grants	asylum	to	another	Ukrainian	woman	who	had	been	trafficked	into	sex	work	and	cites	her	membership	in	the following	particular	social	group	as	the	basis	for	her	persecution:	"impoverished	young	women	from	the	former	Soviet Union	recruited	for	exploitation	in	the	international	sex	trade." In	my	view,	this	formulation	breaks	new	ground	because it	incorporates	the	gender,	age	cohort,	and	economic	status	of	the	victim	as	well	as	the	social	and	economic	upheaval	in the	victim's	homeland	into	the	set	of	characteristics	that	define	the	individuals	whom	transnational	trafficking	organizations single	out	for	persecution.	Unlike	the	UK	decision,	the	Canadian	decision	avoids	collapsing	into	circularity	by	conjoining gender	with	multiple	attributes	that	are	known	to	figure	in	traffickers'	targeting	tactics. Women	are	preyed	upon because	most	purchasers	of	sexual	services	are	heterosexual	men;	young	women	are	preyed	upon	because	they	are perceived	as	more	desirable	by	the	main	clientele;	poor	young	women	are	preyed	upon	because	they	are	eager	to change	their	economic	fortunes;	poor,	young	women	in	patriarchal	societies	with	foundering	economies	have	no	hope	of economic	betterment	in	their	homelands	and	thus	make	ideal	targets	for	traffickers.	Like	the	two	preceding	decisions,	the Canadian	decision	adds	that	upon	return	to	the	Ukraine	there	would	be	a	"reasonable	possibility	that	she	would	be subjected	to	abuse	amounting	to	persecution	at	the	hands	of	organized	criminals"	and	that	she	would	not	be	able	to seek	protection	from	Ukrainian	authorities	in	view	of	the	ties	between	organized	crime	and	the	government	and	the government's	inability	to	combat	trafficking. Summing	up,	there	is	plenty	of	precedent	for	overcoming	the	government	role	problem	in	asylum	cases	stemming	from sex	trafficking.	Additionally,	these	cases	make	a	start	at	overcoming	the	social	group	problem	for	sex	trafficking	victims seeking	asylum.	But	whereas	reproductive	human	rights	factor	into	decisions	to	grant	asylum	to	individuals	seeking	to escape	from	state-sponsored	forced	abortion	or	sterilization	or	seeking	to	escape	from	customary	FGM	practices, reproductive	rights	have	yet	to	become	central	to	understandings	of	persecution	in	relation	to	sex	trafficking.	I	believe that	the	smuggled	woman	problem	and	the	crime-stopper	problem	help	to	suppress	reproductive	rights	issues	in refugee	law	with	respect	to	sex	trafficking	victims. Consolidating	the	Reproductive	Rights	Argument	for	Asylum A	law	enforcement	gestalt	frames	both	the	smuggled	woman	problem	and	the	crime	stopper	problem,	and	both 39 40 41 42 43 44 45 46 47 Victims of Trafficking, Reproductive Rights, and Asylum Page 8 of 16 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). (c) Oxford University Press, 2015. All Rights Reserved. Under the terms of the l icence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy). Subscriber: OUP-Reference Gratis Access; date: 27 January 2016 problems	privilege	sovereign	governance	over	individual	human	rights.	The	crime	stopper	problem	fastens	attention	on incarcerating	perpetrators	and	sidelines	victims	except	in	their	instrumental	role	as	sources	of	evidence.	The	smuggled woman	problem	compounds	this	marginalization	of	victims.	In	all	but	a	few	cases,	it	denies	victimhood	in	the	name	of policing	borders	and	exerting	state	control	over	the	composition	of	the	populace.	Once	victims	of	sex	trafficking	have been	classified	as	malefactors	along	with	traffickers,	law	enforcement-deporting	victims	and	prosecuting	traffickers- becomes	the	preeminent	objective. In	practice,	the	law	enforcement	gestalt	creates	a	presumption	against	refugee	status	for	women	trafficked	into	sex work.	We	have	seen,	for	example,	that	US	law	not	only	directs	women	who	claim	to	be	sex	trafficking	victims	into	the	T visa	system	but	also	sets	more	stringent	evidential	standards	for	obtaining	a	T	visa	than	it	does	for	obtaining	asylum through	regular	refugee	proceedings.	However,	this	presumption	conflicts	with	US	obligations	as	a	signatory	and	State Party	to	the	Palermo	Protocol. Article	14	of	the	Palermo	Protocol	states: Nothing	in	this	Protocol	shall	affect	the	rights,	obligations	and	responsibilities	of	States	and	individuals	under international	law,	including	international	humanitarian	law	and	international	human	rights	law	and,	in	particular, where	applicable,	the	1951	Convention	and	the	1967	Protocol	relating	to	the	Status	of	Refugees	and	the principle	of	non-refoulement	as	contained	therein. Raising	an	all	but	insuperable	barrier	to	asylum	for	victims	of	one	type	of	human	rights	abuse	plainly	abrogates	the obligations	of	States	Parties	to	the	Refugee	Convention	and	violates	the	rights	of	victims	under	the	Convention.	Similarly, the	US	distinction	between	a	severely	trafficked	person	and	a	trafficked	person	is	incompatible	with	the	Palermo Protocol.	As	Rey	Koslowski	points	out,	under	the	protocol	"a	smuggled	woman	becomes	a	trafficking	victim	when	she arrives	at	her	destination	and	is	forced	into	prostitution." Coercion	in	the	recruitment	and	transport	process	is	not	a necessary	condition	for	trafficking.	I	do	not	doubt	the	legitimacy	of	putting	legal	pressure	on	the	activities	of	transnational sex	trafficking	organizations,	including	their	role	in	smuggling	undocumented	migrants.	However,	deporting	women	who have	been	forced	into	sex	work	at	their	destinations	does	not	deter	traffickers	with	side	businesses	in	human	smuggling. Moreover,	implementing	the	Palermo	Protocol	requires	that	a	human	rights	gestalt	counterbalance	the	law	enforcement gestalt.	In	particular,	the	human	rights	abuse	systematically	inflicted	on	women	trafficked	into	sex	work	must	be	brought to	the	fore	and	redressed.	In	addition	to	bringing	US	law	into	alignment	with	US	commitments	under	international	refugee and	antitrafficking	law,	I	urge	that	two	glaring	inconsistencies	regarding	reproductive	rights	in	US	immigration	law	be eliminated. It	is	altogether	arbitrary	to	confine	the	remedy	of	asylum	to	persons	whose	human	right	to	reproductive	selfdetermination	has	been	violated	pursuant	to	government-mandated	population	control	policies.	Forced	contraception (whether	temporary	or	permanent)	and	forced	abortion	are	no	less	abhorrent	when	imposed	by	sex	traffickers	than	they are	when	imposed	by	public	officials. Indeed,	the	former	may	well	be	more	deplorable	than	the	latter.	Population	control,	when	not	an	excuse	for	eugenic population	pruning,	can	be	a	legitimate	state	interest.	The	same	cannot	be	said	of	the	profit	motive	of	gangs	of	outlaws run	amok.	As	it	is	acknowledged	that	traffickers	plying	their	trade	in	countries	with	apathetic	or	complicit	governments can	be	persecutors,	the	difference	between	the	agents	of	persecution	in	the	two	cases	is	of	no	moral	significance.	If	not, the	protections	of	Section	601	of	the	US	Illegal	Immigration	Reform	and	Immigrant	Responsibility	Act	should	be extended	to	women	trafficked	into	sex	work,	for	traffickers	usurp	their	right	to	reproductive	self-determination	as	surely as	any	government	does. Sex	trafficking	is	also	inimical	to	the	right	to	reproductive	health.	Although	Matter	of	Kasinga	does	not	cite	this	right	as	a reason	to	grant	asylum,	the	decision	does	cite	the	adverse	effects	of	FGM	on	sexual	function.	Although	sexual dysfunction	ordinarily	refers	to	problems	with	sexual	desire,	arousal,	or	orgasm	and	pain	during	intercourse,	Matter	of Kasinga	cites	Namib	Toubia's	research	on	FGM,	which	takes	a	broader	view	of	sexual	function.	For	example,	Toubia states	that	chronic	pelvic	infection	is	a	common	complication	of	FGM	and	that	chronic	pelvic	infection	heightens	the	risk of	infertility. In	the	same	vein,	she	points	out	that	many	women	who	have	undergone	genital	mutilation	procedures	fear becoming	infertile	because	of	the	condition	of	their	genitals. The	similarities	between	the	detriments	to	reproductive health	caused	by	FGM	and	those	caused	by	forced	sex	work	are	striking.	Inasmuch	as	the	BIA	has	ruled	that	possessing intact	genitals	is	so	fundamental	to	a	woman's	identity	that	she	should	not	be	compelled	to	submit	to	having	them	altered, surely	an	intact	capacity	to	conceive	and	give	birth	to	a	child	is	also	so	fundamental	to	a	woman's	identity	that	she	should not	be	compelled	to	submit	to	treatment	likely	to	irreparably	damage	it.	It	follows	that	being	trafficked	into	sex	work 48 49 50 51 Victims of Trafficking, Reproductive Rights, and Asylum Page 9 of 16 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). (c) Oxford University Press, 2015. All Rights Reserved. Under the terms of the l icence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy). Subscriber: OUP-Reference Gratis Access; date: 27 January 2016 constitutes	persecution	comparable	to	being	subjected	to	FGM. Finally,	in	many	instances,	repatriating	women	who	have	been	trafficked	into	sex	work	deprives	them	of	the	right	to	found a	family.	So	valorized	is	the	virginity	of	brides	and	so	stigmatized	is	sex	work	that	many	sex	trafficking	survivors	are	cruelly ostracized	when	they	are	returned	to	their	communities	of	origin.	Moreover,	once	a	woman	has	been	trafficked	into	sex work,	her	traffickers	regard	her	as	their	property.	Although	she	may	have	originally	colluded	with	traffickers	in	order	to migrate,	she	can	expect	to	be	tracked	down	and	retrafficked	if	she	is	deported	from	her	destination	state. Unable	to find	work	or	make	a	marriage	and	pursued	by	transnational	trafficking	gangs,	women	trafficked	into	sex	work	are	highly vulnerable	to	retrafficking. Thus,	repatriation	often	amounts	to	refoulement-return	to	persecution-and nonrefoulement	is	a	cardinal	principle	of	international	refugee	law. All	the	elements	are	now	in	place	to	justify	making	asylum	available	to	migrant	women	forced	into	sex	work.	I	have argued	that	the	harms	resulting	from	forced	sex	work	rise	to	the	level	of	persecution.	It	is	indisputable	that	violations	of reproductive	human	rights	can	be	persecutory.	I	have	identified	the	persecutory	agent.	The	persecutors	are	transnational criminal	gangs	that	operate	with	little	or	no	interference	from	legal	authorities	in	countries	where	women	are	recruited and	in	destination	countries. I	have	specified	the	features	of	the	particular	social	group	that	is	targeted	by	these transnational	gangs.	They	are	poor,	young	females	in	states	where	women	are	routinely	discriminated	against	in education	and	employment	and/or	where	law	and	order	have	broken	down	because	of	social	upheaval,	widespread poverty,	or	recent	armed	conflict.	Although	it	may	be	necessary	to	refine	this	formulation	to	reflect	changing	local conditions	in	source	countries,	it	provides	a	legally	tenable	framework	for	future	asylum	claims.	Add	to	all	of	this	the likelihood	of	refoulement	if	women	trafficked	into	sex	work	are	not	granted	a	safe	haven	in	destination	states,	and	the justification	is	complete. The	Ethical	Obligations	of	Destination	States For	the	United	States	(and	states	with	similar	trafficking	and	immigration	policies),	the	overarching	obligation	that	flows from	my	line	of	argument	in	the	preceding	sections	is	to	modify	the	laws	and	practices	governing	the	treatment	of	women trafficked	into	sex	work	in	order	to	secure	their	right	to	asylum.	Denying	this	right	or	constructing	elevated	requirements for	accessing	it	is	inconsistent	with	the	Refugee	Convention	and	the	Palermo	Protocol.	The	obligation	to	reform trafficking	and	immigration	policy	in	this	way	is	all	the	more	stringent	because	destination	states	provide	vast	markets	for commercial	sexual	services,	thereby	fostering	the	high	profitability	of	trafficking	sex	workers,	and	also	because	their enforcement	of	antitrafficking	laws	is	lax. But	the	ethical	obligations	of	destination	states	do	not	end	with	legislative	reform,	for	immigration	procedures	are organized	in	ways	that	allow	implicit	bias	to	unfairly	shape	outcomes	and	these	unreliable	procedures	must	be	reformed. Issues	concerning	stereotyping	and	bias	recur	throughout	the	literature	on	sex	work	and	migration.	Preliminary	to suggesting	ways	in	which	to	counteract	implicit	bias	in	immigration	hearings,	I	will	comment	on	three	strands	of	prejudice that	distort	perception	of	women	trafficked	into	sex	work. Martha	Nussbaum's	work	on	disgust	is	a	good	place	to	start	getting	a	purchase	on	one	relevant	type	of	implicit	bias. Nussbaum	sums	up	her	understanding	of	disgust	in	the	following	passage: Because	disgust	embodies	a	shrinking	from	contamination	that	is	associated	with	the	human	desire	to	be	nonanimal,	it	is	more	likely	to	be	hooked	up	with	various	forms	of	shady	social	practice,	in	which	the	discomfort people	feel	over	the	fact	of	having	an	animal	body	is	projected	outward	on	vulnerable	people	and	groups. She	goes	on	to	point	out	that	semen	is	among	the	types	of	bodily	discharge	that	are	regarded	as	disgusting,	and	that	this disgust	transfers	to	persons	who	have	frequent	contact	with	it. It	is	a	short	step	to	the	observation	that	"sex	itself	has something	disgusting	about	it,	something	furtive	and	self-contaminating,	particularly	if	it	is	the	body	of	a	female	whore (receptacle	of	countless	men's	semen)	that	inspires	desire." Along	similar	lines,	Dina	Haynes	comments	that	one mechanism	through	which	the	victims	of	sex	trafficking	are	othered	hinges	on	the	sexualization	of	racial/ethnic stereotypes. Because	only	a	disreputable	type	of	person	becomes	a	sex	worker,	character	assassination	follows	on	the heels	of	victimization. Another	strand	of	implicit	bias	concerns	poor	women	of	reproductive	age. The	same	attitudes	that	sparked	the	wave	of	resentment	against	single	mothers	on	welfare	that	led	to	the	gutting	of 52 53 54 55 56 57 58 Victims of Trafficking, Reproductive Rights, and Asylum Page 10 of 16 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). (c) Oxford University Press, 2015. All Rights Reserved. Under the terms of the l icence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy). Subscriber: OUP-Reference Gratis Access; date: 27 January 2016 social	benefits	for	women	with	dependent	children	in	the	United	States	infect	perceptions	of	women	trafficked	into	sex work.	Trafficked	women	are	presumed	to	be	uneducated	and	unqualified	for	jobs	in	today's	economy,	and	an	unknown percentage	of	them	fall	into	trafficking	schemes	because	they	are	trying	to	migrate	in	order	to	send	remittances	home	to their	children.	Thus,	their	immigration	cases	trigger	the	stereotype	of	the	lazy,	lying,	irresponsible,	poor	young	woman. Inasmuch	as	the	statutory	grounds	for	excluding	claimants	from	the	United	States	include	the	likelihood	of	becoming	a "public	charge,"	this	implicit	bias	can	sabotage	a	trafficked	woman's	otherwise	worthy	application	for	asylum. A	third	pair	of	stereotypes	interferes	with	seeing	women	trafficked	into	sex	work	as	refugees	and	hence	as	candidates for	asylum.	On	the	one	hand,	we	have	an	image	of	persecuted	individuals	as	brave	opponents	of	tyranny.	On	the	other hand,	we	have	an	image	of	trafficking	victims	as	helpless,	passive	pawns	of	ruthless	thugs.	Insofar	as	the	latter	image frames	perception	of	an	applicant	for	asylum,	its	irreconcilability	with	the	image	of	a	"proper"	candidate	for	asylum undermines	her	case.	Indeed,	because	qualifying	as	a	"severe"	trafficking	victim	under	US	law	requires	proving	that	no voluntary	action	of	your	own	contributed	to	your	plight,	the	law	demands	that	trafficking	victims	present	themselves	as conforming	to	the	helpless,	passive	stereotype,	which	in	turn	undermines	their	plausibility	as	asylum	seekers. This	pileup	of	perception	problems	gives	rise	to	grave	epistemic	injustice	with	dire	material	consequences	for	many asylum	seekers. In	asylum	hearings,	the	credibility	of	the	applicant	is	crucial,	but	the	stereotypes	I	have	sketched,	if allowed	to	prevail,	raise	doubts	about	her	truthfulness	in	virtue	of	her	presumptive	character	as	a	member	of	the	very sort	of	group	that	is	apt	to	be	persecuted	through	sex	trafficking.	But,	as	Laurence	Kirmayer	points	out,	if	the	asylum seeker	attempts	to	address	probable	biases	in	her	sworn	testimony,	"any	trace	of	this	effort	will	cast	doubt	on	[her] account." In	contrast,	Fatma	Marouf	focuses	on	ways	to	improve	the	institutional	setting	in	which	US	immigration proceedings	are	conducted	rather	than	on	ways	asylum	seekers	or	their	attorneys	can	overcome	the	implicit	biases	of judges.	It	seems,	therefore,	that	Marouf's	remedies	for	the	problem	of	implicit	bias	in	asylum	proceedings	hold	most promise. Marouf	exposes	a	number	of	institutional	arrangements	that	conduce	to	the	influence	of	implicit	bias	in	immigration hearings.	Immigration	judges	are	Department	of	Justice	civil	servants,	most	of	whom	previously	held	positions	in	the Department	of	Homeland	Security	that	required	regarding	prospective	immigrants	with	suspicion. As	a	result,	many judges	adopt	an	"inquisitorial"	posture	in	hearings. To	ensure	greater	impartiality,	Marouf	recommends	separating	the appointment	of	immigration	judges	from	the	Department	of	Justice. She	goes	on	to	point	out	that	immigration	judges work	under	appalling	conditions.	Their	calendars	of	cases	are	overloaded;	they	have	insufficient	support	staff	to	do	legal research;	and	they	are	expected	to	deliver	oral	decisions	on	the	spot. Correcting	for	implicit	bias	is	possible	given familiarity	with	widespread	prejudices,	strategies	for	counteracting	them,	and	time	to	deliberate	carefully.	But	the	highly pressured	context	in	which	US	immigration	judges	are	currently	obliged	to	work	thwarts	even	the	most	fair-minded judges.	Marouf's	solution,	of	course,	is	to	reduce	judges'	caseloads	and	eliminate	the	rushed	schedules	they	are expected	to	maintain. The	reforms	Marouf	advocates	would	benefit	all	asylum	seekers	in	the	United	States,	but	for	my	purposes	it	is	key	that they	would	give	women	seeking	asylum	in	the	aftermath	of	forced	sex	work	a	better	chance	of	getting	a	fair	hearing. None	of	these	measures	will	accomplish	much,	however,	if	immigration	judges	are	not	sensitized	to	the	prejudicial stereotypes	that	may	mislead	them	and	if	they	receive	no	training	in	how	to	curb	implicit	biases.	Still,	as	early	as	1995,	the INS	took	the	initiative	in	educating	judges	about	the	distinctive	issues	that	persecution	on	account	of	gender	raises. "Considerations	for	Asylum	Officers	Adjudicating	Asylum	Claims	From	Women"	acknowledges	the	distance	between salient	understandings	of	persecution	and	the	forms	of	persecution	that	primarily	impact	women,	and	it	instructs	judges	in how	to	respond	appropriately	to	gender-based	claims. Yet	change	has	come	slowly,	and	the	full	implications	of persecutory	abuses	of	women's	reproductive	rights	remain	far	from	adequately	appreciated.	For	reasons	that	are	easy to	fathom,	sexual	violence	and	reproductive	defilement	carry	an	extraordinarily	intense	emotional	charge	that	is profoundly	unsettling-more	so	than	familiar,	though	horrifically	cruel	forms	of	persecution,	such	as	extrajudicial incarceration,	death	threats,	and	torture.	As	a	result,	there	is	strong	resistance	to	extending	asylum	to	women	trafficked into	sex	work	based	on	violations	of	their	reproductive	rights. This	resistance	is	strengthened,	perhaps	masked,	by	appeals	to	the	so-called	floodgates	argument.	Floodgates arguments	rest	on	demographic	considerations,	for	they	claim	that	a	certain	type	of	persecution	is	so	pervasive	that	the receiving	nation	must	protect	itself	from	a	potentially	overwhelming	influx	of	migrants.	But	by	itself	this	demographic concern	is	plainly	insufficient	to	justify	excluding	a	particular	type	of	asylum	seeker.	To	be	ethically	convincing,	a 59 60 61 62 63 64 65 66 67 68 Victims of Trafficking, Reproductive Rights, and Asylum Page 11 of 16 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). (c) Oxford University Press, 2015. All Rights Reserved. Under the terms of the l icence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy). Subscriber: OUP-Reference Gratis Access; date: 27 January 2016 floodgates	argument	must	invoke	a	normative	claim	that	the	alleged	persecution	is	so	trifling	or	tractable	that	the	state	is justified	in	barring	these	victims.	Dina	Haynes	questions	the	cogency	of	the	demographic	worry,	for	there	is	no	reason	to believe	that	more	women	would	be	induced	to	attempt	migration	than	is	presently	the	case,	nor	is	there	reason	to believe	that	women	would	willingly	endure	the	brutality	of	forced	sex	work	in	order	to	qualify	as	refugees	in	destination states. I	have	argued	that	the	normative	claim	is	a	travesty.	On	the	contrary,	acknowledging	asylum	claims	stemming from	abuse	of	trafficked	women's	reproductive	rights	is	vital	both	because	of	the	gravity	of	the	reproductive	harm inflicted	and	because	equitable	application	of	legal	principles	demands	it. Still,	granting	women	who	have	been	trafficked	into	sex	work	access	to	the	right	to	asylum	is	not	a	sufficient	remedy	for the	human	rights	violations	they	have	suffered.	Asylum	in	many	destination	states	is	an	effective	guarantee	of	victims' future	reproductive	self-determination,	but	by	itself	asylum	does	nothing	to	restore	or	limit	the	damage	to	their reproductive	health.	In	her	capacity	as	Special	Rapporteur	on	Trafficking	in	Persons,	Joy	Ngozi	Ezeilo	forcefully	argues that	trafficked	persons	have	a	right	to	an	effective	remedy	and	that	helping	victims	to	recover	from	the	ordeal	of trafficking	is	an	essential	component	of	an	effective	remedy. Not	surprisingly,	she	emphasizes	that	furnishing	medical and	psychological	care	is	often	vital	to	the	recovery	of	trafficking	victims. In	view	of	the	high	incidence	of	serious	harm to	the	reproductive	health	of	women	trafficked	into	sex	work,	it	follows	that	providing	an	effective	remedy	to	them requires,	at	a	minimum,	diagnosing	and	treating	STIs. The	reforms	that	the	United	States	would	need	to	put	in	place	in	order	to	comply	with	this	tenet	of	international	law	are somewhat	less	momentous	than	the	changes	in	refugee	law	and	implementation	that	I	have	advocated	so	far.	Under current	trafficking	law,	persons	certified	as	trafficking	victims	are	eligible	for	Medicaid,	Refugee	Medical	Assistance,	and medical	testing	and	treatment	for	communicable	diseases. If	trafficking	victims	were	viewed	as	asylum	seekers,	they would	receive	the	same	health	benefits	once	their	asylum	applications	were	successful.	However,	in	view	of	the connection	between	untreated	STIs	and	infertility,	the	high	incidence	of	STIs	among	women	trafficked	into	sex	work,	and the	protracted	process	of	applying	for	asylum,	these	health	care	provisions	must	be	extended	to	victims	of	sex	trafficking during	the	asylum	application	process	in	order	to	ensure	respect	for	their	reproductive	human	rights.	This	modest expansion	of	health	care	rights	would	go	a	long	way	toward	realizing	sex	trafficking	victims'	reproductive	rights. Now	that	covering	contraception	is	mandatory	for	all	US	health	insurance,	sex	trafficking	victims	would	be	entitled	to	the means	of	managing	their	fertility. However,	one	recovery	scenario	poses	a	serious	political	problem	in	the	United States.	Many	states	do	not	pay	for	abortion	through	their	Medicaid	programs,	and	it	remains	illegal	to	use	federal	funds to	pay	for	abortions.	Yet	it	is	altogether	possible	that	some	victims	of	sex	trafficking	will	escape	from	their	traffickers	and apply	for	asylum	while	pregnant.	Studies	indicate	that	many	of	them	will	want	to	terminate	their	pregnancies,	and	being able	to	do	so	may	well	be	critical	to	their	recovery	processes.	If	so,	the	United	States	and	other	destination	states	with restrictive	abortion	policies	will	need	to	permit	federal	funding	of	abortions	for	some	sex	trafficking	victims	in	order	to provide	an	effective	remedy	for	the	reproductive	abuse	these	women	have	endured. In	sum,	destination	states	that	fail to	classify	women	trafficked	into	sex	work	as	legitimate	asylum	seekers	or	that	fail	to	provide	prompt	remedial	health care	to	them	are	flouting	ethical	obligations	of	the	first	magnitude. Notes: ( )	Binaifer	A.	Davar,	"Rethinking	Gender-Related	Persecution,	Sexual	Violence,	and	Women's	Rights:	A	New Conceptual	Framework	for	Political	Asylum	and	International	Human	Rights	Law,"	Texas	Journal	of	Women	and	the	Law 6	(1997):	241–256;	Tala	Hartsough,	"Asylum	for	Trafficked	Women:	Escape	Strategies	beyond	the	T	Visa,"	Hastings Women's	Law	Journal	13	(2002):	77–116;	Dina	Francesca	Haynes,	"Used,	Abused,	Arrested,	and	Deported:	Extending Immigration	Benefits	to	Protect	Victims	of	Trafficking	and	to	Secure	Prosecution	of	Traffickers,"	in	Women's	Rights:	A Human	Rights	Quarterly	Reader,	ed.	Bert	B.	Lockwood	(Baltimore,	MD:	Johns	Hopkins	University	Press,	2006);	Dina Francesca	Haynes,	"(Not)	Found	Chained	to	a	Bed	in	a	Brothel:	Conceptual,	Legal,	and	Procedural	Failures	to	Fulfill	the Promise	of	the	Trafficking	Victims	Protection	Act,"	Georgetown	Immigration	Law	Journal	21	(2007):	337–381. ( )	For	a	helpful	discussion	of	the	links	between	women's	right	to	reproductive	self-determination	and	the	right	to	life, the	right	to	liberty	and	security	of	the	person,	and	the	right	to	found	a	family,	see	Rebecca	J.	Cook,	"International	Human Rights	and	Women's	Reproductive	Health,"	in	Women's	Rights,	Human	Rights:	International	Feminist	Perspectives,	ed. Julie	Peters	and	Andrea	Wolper	(New	York:	Routledge,	1995). ( )	Aliya	Haider,	"Out	of	the	Shadows:	Migrant	Women's	Reproductive	Rights	Under	International	Law,"	Georgetown 69 70 71 72 73 74 75 76 1. 2. 3. Victims of Trafficking, Reproductive Rights, and Asylum Page 12 of 16 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). (c) Oxford University Press, 2015. All Rights Reserved. Under the terms of the l icence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy). Subscriber: OUP-Reference Gratis Access; date: 27 January 2016 Immigration	Law	Journal	22	(2008):	429–457,	438. ( )	Haider,	438. ( )	Elzbieta	M.	Gozdziak	and	Elizabeth	A.	Collett,	"Research	on	Trafficking	in	North	America:	A	Review	of	the Literature,"	International	Migration	43	(2005):	99–128,	107,	113–114. ( )	http://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking.html	(accessed	September	7,	2013). ( )	Cathy	Zimmerman	et	al.,	Stolen	Smiles:	The	Physical	and	Psychological	Health	Consequences	of	Women	and Adolescents	Trafficked	in	Europe,	London	School	of	Hygiene	&	Tropical	Medicine: http://genderviolence.lshtm.ac.uk/files/Stolen-Smiles-Trafficking-and-Health-2006.pdf	(2006),	3,	63. ( )	Zimmerman	et	al.,	64. ( )	Zimmerman	et	al.,	61. ( )	Zimmerman	et	al.,	62,	68. ( )	Zimmerman	et	al.,	69.	A	study	of	the	health	consequences	of	sex	trafficking	in	Southeast	Asia	reports	that	septic abortions	are	a	major	danger	faced	by	trafficked	sex	workers	in	Burma	and	Thailand.	Chris	Beyrer	and	Julie	Stachowiak, "Health	Consequences	of	Trafficking	of	Women	and	Girls	in	Southeast	Asia,"	Brown	Journal	of	World	Affairs	10	(2003): 105–117,	106,	111. ( )	Zimmerman	et	al.,	64,	65. ( )	Zimmerman	et	al.,	69,	70. ( )	S.	Abdulraheem	and	A.	R.	Oladipo,	"Trafficking	in	Women	and	Children:	A	Hidden	Health	and	Social	Problem	in Nigeria,"	International	Journal	of	Sociology	and	Anthropology	2	(2010):	34–39,	37,	39. ( )	Abdulraheem	and	Oladipo,	37. ( )	Abdulraheem	and	Oladipo,	37. ( )	http://www.unhcr.org/3b66c2aa10.html. ( )	James	C.	Hathaway,	The	Law	of	Refugee	Status	(Toronto:	Butterworths,	1991),	104–105. ( )	Haynes	2007,	373;	also	see	Wendy	Chapkis,	"Trafficking,	Migration,	and	the	Law:	Protecting	Innocents,	Punishing Immigrants,"	Gender	and	Society	17,	no.	3	(2003):	923–937,	931–932. ( )	Louisa	Waugh,	Selling	Olga,	xv.	Kara	notes	that	in	Central	and	Eastern	Europe	seduction	coupled	with	promises	of lifelong	romance	in	the	West	is	another	common	ploy	to	lure	women	into	trafficking	schemes	Siddharth	Kara,	Sex Trafficking,	9. ( )	Siddharth	Kara,	Sex	Trafficking:	Inside	the	Business	of	Modern	Slavery	(New	York:	Columbia	University	Press, 2009),	7.	Louisa	Waugh,	Selling	Olga:	Stories	of	Human	Trafficking	and	Resistance	(London:	Orion	Books,	2007),	xiv, 63. ( )	Suzanne	Dayley,	"Rescuing	Young	Women	From	Trafficker's	Hands,"	New	York	Times,	October	15,	2010.	Siddharth Kara,	Sex	Trafficking,	7,	23–30,	115,	142.	Louisa	Waugh,	Selling	Olga,	3,	73 ( )	Liz	Kelly	adds	a	layer	of	complexity	to	the	economic	forces	shaping	these	women's	decisions.	Many	"smuggled" women	borrow	money	from	relatives	in	order	to	seek	their	fortunes	in	foreign	sex	industries.	If	they	are	deported	and return	empty-handed,	they	are	unable	to	repay	their	debts	and	feel	compelled	to	submit	to	retrafficking	in	the	hope	of making	good	on	their	debts	if	not	improving	family	finances.	Thus,	the	cycle	of	sexual	abuse	commonly	enters	a	new iteration.	Liz	Kelly,	"'You	Can	Find	Anything	You	Want':	A	Critical	Reflection	on	Research	on	Trafficking	in	Persons	Within and	Into	Europe,"	International	Migration	43,	no.	1/2	(2005):	236–265,	248. ( )	Jacqueline	Bhabha,	"International	Gatekeepers?	The	Tension	Between	Asylum	Advocacy	and	Human	Rights," 4. 5. 6 . 7. 8. 9 . 10 . 11. 12. 13. 14. 15. 16 . 17. 18. 19 . 20 . 21. 22. 23. 24. Victims of Trafficking, Reproductive Rights, and Asylum Page 13 of 16 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). (c) Oxford University Press, 2015. All Rights Reserved. Under the terms of the l icence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy). Subscriber: OUP-Reference Gratis Access; date: 27 January 2016 Harvard	Human	Rights	Journal	15	(2002):	155–181,	175–176;	April	Rieger,	"Missing	the	Mark:	Why	the	Trafficking Victims	Protection	Act	Fails	to	Protect	Sex	Trafficking	Victims	in	the	United	States,"	Harvard	Journal	of	Law	and	Gender 30	(2007):	231–256,	249;	Hartsough,	99. ( )	Hartsough,	101. ( )	http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Victims/I914tI918u_visastatistics_2012-dec.pdf ( )	As	Gozdziak	and	Collett	point	out,	disputed	definitions	of	sex	trafficking,	not	to	mention	the	underground	nature	of the	enterprise,	make	accurate	counts	of	victims	impossible	and	estimates	highly	conjectural	(pp.	107–108).	Nevertheless, they	cite	the	official	US	estimate	for	2004	of	14,500–517,500	(p.	117). ( )	Rieger,	249. ( )	Rieger,	252–253. ( )	Not	surprisingly,	some	trafficked	women	tell	stories	that	smack	of	ambitions	to	upward	mobility	and	heightened consumerism	rather	than	escape	from	poverty	(Christine	M.	Jacobsen	and	May-Len	Skilbrei,	"Reproachable	Victims?" Ethnos	75	(2010):	190–212,	199–200).	However,	because	stories	of	desperate	flights	from	severe	poverty	and/or domestic	abuse	and	the	need	to	support	family	back	home	predominate	in	the	literature,	I	center	my	discussion	on	that background	narrative	(see	Louisa	Waugh,	15–16,	31–32;	Abdulraheem	and	Oladipo,	37–38;	Hartsough,	80;	Natasha Ahmad	"Trafficked	Persons	or	Economic	Migrants?	Bangladeshis	in	India,"	in	Trafficking	and	Prostitution	Reconsidered: New	Perspectives	on	Migration,	Sex	Work,	and	Human	Rights,	ed.	Kamala	Kempadoo	(Boulder,	CO:	Paradigm Publishers,	2005),	212–213,	224–225;	Jan	Boontinand,	"Feminist	Participatory	Action	Research	in	the	Mekong	Region,"	in Trafficking	and	Prostitution	Reconsidered:	New	Perspectives	on	Migration,	Sex	Work,	and	Human	Rights.	ed.	Kamala Kempadoo	(Boulder,	CO:	Paradigm	Publishers,	2005),	186,	192–193;	Siddarth	Kara,	Sex	Trafficking:	Inside	the	Business of	Modern	Slavery	(New	York	City:	Columbia	University	Press,	2009),	25,	114–115,	143,	172. ( )	Michelle	Foster,	International	Refugee	Law	and	Socio-Economic	Rights:	Refuge	From	Deprivation	(Cambridge: Cambridge	University	Press,	2007),	324–325. ( )	Matter	of	Acosta	(http://www.justice.gov/eoir/vll/intdec/vol19/2986.pdf,	accessed	Septmber	15,	2013,	p.	212. ( )	Matter	of	Acosta,	p.	222. ( )	Quoted	by	Paula	Abrams,	"Population	Politics:	Reproductive	Rights	and	U.S.	Asylum	Policy,"	Georgetown Immigration	Law	Journal	14	(2000):	881–905,	882. ( )	Canadian	law	regarding	forced	abortion	or	sterilization	does	not	hinge	on	holding	an	oppositional	political	opinion but	rather	on	membership	in	a	particular	social	group.	See	Cheung	v.	Canada	(http://www.refworld.org/cgibin/texis/vtx/rwmain? page=country&category=&publisher=CAN_FCA&type=CASELAW&coi=CHN&rid=&docid=3ae6b70b18&skip=0, accessed	September	15,	2013). ( )	Abrams,	904. ( )	In	Re	Fauziya	Kasinga	(http://www.justice.gov/eoir/vll/intdec/vol21/3278.pdf,	accessed	September	14,	2013),	p.	361. ( )	Davar,	243–244. ( )	Davar,	245,	249–250. ( )	Davar,	250. ( )	Stephen	Knight,	"Asylum	From	Trafficking:	A	Failure	of	Protection."	Immigration	Briefings:	Practical	Analysis	of Immigration	and	Nationality	Issues.	No.	07-07	Thomson/West	(July	2007);	also	see	Haynes	(2007). ( )	Haynes	(2007),	476–477. 25. 26 . 27. 28. 29 . 30 . 31. 32. 33. 34. 35. 36 . 37. 38. 39 . 40 . 41. 42. 43. Victims of Trafficking, Reproductive Rights, and Asylum Page 14 of 16 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). (c) Oxford University Press, 2015. All Rights Reserved. Under the terms of the l icence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy). Subscriber: OUP-Reference Gratis Access; date: 27 January 2016 ( )	Angelika	Kartusch,	Reference	Guide	for	Anti-Trafficking	Legislative	Review,	(http://www.osce.org/odihr/13986, accessed	September	15,	2013),	OSCE/ODIHR	(2001),	69. ( )	Kartusch,	69. ( )	Kartusch,	69. ( )	The	2006	2nd	Circuit	Court	of	Appeals	decision	in	Gao	v.	Gonzales	held	that	"the	statutory	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." Gao	v.	Gonzales	440	F.3d	62	(2d	Circuit	2006,	p.	3	(http://cgrs.uchastings.edu/documents/legal/gao.pdf,	accessed September	21,	2013).	Additionally,	in	the	2012	7th	Circuit	Court	of	Appeals	decision	in	Cece	v.	Holder,	the	majority	held that	the	persecutory	harm	feared	by	an	asylum	seeker	could	be	a	component	of	the	definition	of	the	particular	social group	to	which	she	belongs	but	could	not	be	the	whole	of	it	(http://scholar.google.com/scholar_case? case=17906068323051465130&q=cece+v.+holder&hl=en&as_sdt=2,33&as_vis=1,	accessed	September	17,	2013). ( )	Kartusch,	69. ( )	See	https://www.unodc.org/unodc/en/treaties/CTOC/countrylist-traffickingprotocol.html. ( )	Rey	Koslowski,	"Response	to	'The	New	Global	Slave	Trade'	by	Harold	Honfju	Koh,"	in	Displacement,	Asylum, Migration:	The	Oxford	Amnesty	Lectures	2004,	ed.	Kate	E.	Tunstall	(Oxford:	Oxford	University	Press,	2006),	259–260. Also	see	UNHCR	"Guidelines	on	International	Protection	No.	7:	The	Application	of	Article	1A(2)	of	the	1951	Convention and/or	1967	Protocol	Relating	to	the	Status	of	Refugees	to	Victims	of	Trafficking	and	Persons	at	Risk	of	Being Trafficked"	7	April,	2006	http://www.refworld.org/docid/443679fa4.html	(accessed	February	13,	2014). ( )	Namid	Toubia,	"Female	Circumcision	as	a	Public	Health	Issue,"	New	England	Journal	of	Medicine	331,	no.	11 (1994):	712–716,	713.	(http://www.nejm.org/doi/full/10.1056/NEJM199409153311106,	accessed	October	15,	2013). ( )	Toubia,	714. ( )	According	to	the	UNHCR	"Guidelines	on	International	Protection	Relating	to	the	Status	of	Refugees	to	Victims	of Trafficking	and	Persons	at	Risk	of	Being	Trafficked,"	a	refugee	need	not	have	left	her	country	of	origin	because	of persecution	or	fear	of	persecution: The	requirement	of	being	outside	one's	country	does	not,	however,	mean	that	the	individual	must	have	left	on account	of	a	well-founded	fear	of	persecution.	Where	this	fear	arises	after	she	or	he	has	left	the	country	of origin,	she	or	he	would	be	a	refugee	sur	place,	providing	the	other	elements	in	the	refugee	definition	were fulfilled.	Thus,	while	victims	of	trafficking	may	not	have	left	their	country	owing	to	a	well-founded	fear	of persecution,	such	a	fear	may	arise	after	leaving	their	country	of	origin.	In	such	cases,	it	is	on	this	basis	that	the claim	to	refugee	status	should	be	assessed.	(Paragraph	25) From	the	standpoint	of	international	law,	then,	the	smuggled	woman	problem	is	a	red	herring. ( )	UNHCR.	"Guidelines	on	International	Protection	Relating	to	the	Status	of	Refugees	to	Victims	of	Trafficking	and Persons	at	Risk	of	Being	Trafficked."	2006,	7;	Haynes	(2006),	461–462,	471–472,	476;	Waugh,	39. ( )	Leslie	and	John	Francis	show	that	lack	of	enforcement	of	laws	prohibiting	sex	trafficking	is	not	a	problem	unique	to source	countries.	It	is	also	a	failing	of	destination	states,	including	the	United	States.	See	their	"Trafficking	in	Human Beings:	Partial	Compliance	Theory,	Enforcement	Failure,	and	Obligations	to	Victims,"	in	Poverty,	Agency,	and	Human Rights,	ed.	Diana	Tietjens	Meyers	(New	York:	Oxford	University	Press,	2014). ( )	Martha	C.	Nussbaum,	"'Secret	Sewers	of	Vice':	Disgust,	Bodies,	and	the	Law,"	in	The	Passion	of	the	Law,	ed. Susan	Bandes	(New	York:	NYU	Press,	1999),	22. ( )	Nussbaum,	24. ( )	Nussbaum,	40. ( )	Haynes	2007,	356;	also	see	Haynes	(2006),	456.	For	a	recap	of	the	workings	of	explicit	bias	in	US	immigration	law, 43. 44. 45. 46 . 47. 48. 49 . 50 . 51. 52. 53. 54. 55. 56 . 57. 58. Victims of Trafficking, Reproductive Rights, and Asylum Page 15 of 16 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). (c) Oxford University Press, 2015. All Rights Reserved. Under the terms of the l icence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy). Subscriber: OUP-Reference Gratis Access; date: 27 January 2016 see	Fatma	E.	Marouf,	"Implicit	Bias	and	Immigration	Courts."	New	England	Law	Review	45	(2010-2011):	417–434,	422– 423. ( )	Hartsough,	99;	Rieger,	253. ( )	Kara	Abramson,	"Beyond	Consent,	Toward	Safeguarding	Human	Rights:	Implementing	the	United	Nations Trafficking	Protocol."	Harvard	International	Law	Journal	44,	no.	2	(2003):	473–502,	495. ( )	For	a	pertinent	account	of	testimonial	injustice	and	hermeneutical	injustice	that	addresses	the	problem	of	implicit bias,	see	Miranda	Fricker,	Epistemic	Injustice:	Power	and	the	Ethics	of	Knowing	(Oxford:	Oxford	University	Press, 2007). ( )	Laurence	J.	Kirmayer,	"Failures	of	Imagination:	The	Refugee's	Narrative	in	Psychiatry,"	Anthropology	and	Medicine 10,	no.	2	(2003):	167–185,	174. ( )	Marouf,	429. ( )	Marouf,	430. ( )	Marouf,	430. ( )	Marouf,	431–433. ( )	Marouf,	434. ( )	A	1995	memorandum	distributed	to	the	INS	Asylum	Officer	Corps, http://cgrs.uchastings.edu/documents/legal/guidelines_us.pdf	(accessed	October	21,	2013). ( )	Haynes	(2006),	479;	Haynes	(2007),	377. ( )	See	the	2011	Report	to	the	UN	General	Assembly	of	the	Special	Rapporteur	on	Trafficking	in	Persons,	Especially Women	and	Children	http://www.ohchr.org/Documents/Issues/Trafficking/A-66-283.pdf	(accessed	February	12,	2014). ( )	Ibid. ( )	See	the	US	Office	of	Refugee	Resettlement's	"Fact	Sheet:	Victim	Assistance" http://www.acf.hhs.gov/programs/orr/resource/fact-sheet-victim-assistance-english#Benefits	(accessed	February	12, 2014). ( )	Although	the	focus	of	this	paper	is	women	from	economically	disadvantaged,	source	states	who	are	trafficked	into sex	work	in	economically	advantaged,	destination	states,	I	note	that	the	points	I	am	making	about	the	obligation	to provide	remedial	health	care	apply	equally	to	native	born	women	who	are	trafficked	into	sex	work	in	their	home countries. ( )	See	US	Affordable	Care	Act	of	2010	http://www.hrsa.gov/womensguidelines/	(accessed	February	12,	2014). ( )	The	summary	of	the	Justice	for	Victims	of	Trafficking	Act	of	2015,	which	at	this	writing	has	been	passed	by	the	US Senate	but	not	the	House,	states,	"The	bill	prohibits	the	use	of	amounts	from	the	Fund	for	any	abortion	or	for	health benefits	coverage	that	includes	coverage	of	abortion,	except	where	the	pregnancy	is	the	result	of	rape	or	incest	or	the woman's	life	is	in	danger	unless	an	abortion	is	performed"	(https://www.congress.gov/bill/114th-congress/senate-bill/178, accessed	April	28,	2015).	If	the	bill	is	passed	and	signed	into	law	with	this	language	intact,	it	is	possible	that	victims	of	sex trafficking	will	qualify	for	funding	for	abortions.	Since	sex	acts	performed	by	women	trafficked	into	sex	work	are	by definition	nonconsensual,	any	pregnancies	resulting	from	these	forced	sex	acts	should	count	as	resulting	from	rape. ( )	I	thank	Francoise	Dussart	for	helpful	discussion	of	this	topic,	Jean	Connolly	Carmalt	for	valuable	suggestions regarding	human	rights	and	refugee	law,	and	Leslie	Francis	for	her	incisive	comments	on	an	earlier	draft. Diana	Tietjens	Meyers Diana	Tietjens	Meyers,	Professor	Emerita	of	Philosophy,	University	of	Connecticut 59 . 60 . 61. 62. 63. 64. 65. 66 . 67. 68. 69 . 70 . 71. 72. 73. 74. 75. 76 . Victims of Trafficking, Reproductive Rights, and Asylum Page 16 of 16 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). (c) Oxford University Press, 2015. All Rights Reserved. Under the terms of the l icence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy). Subscriber: OUP-Reference Gratis Access; date: 27 January