Prabha Kotiswaran: ‘The Sexual Politics of Anti-trafficking Discourse’

Prabha Kotiswaran is a Professor of Law and Social Justice at King’s College London. Her main areas of research include criminal law, transnational criminal law, sociology of law, postcolonial theory and feminist legal theory. Professor Kotiswaran authored ‘Dangerous Sex, Invisible Labour: Sex Work and the Law in India’ (Winner of the 2012 SLSA-Hart Prize for Early Career Academics), co-authored ‘Governance Feminism: An Introduction’, and has edited several books including ‘Towards an Economic Sociology of Law’ and ‘Revisiting the Law and Governance of Trafficking, Forced Labour and Modern Slavery’. Her work has been internationally recognised by a number of prizes and awards including the Leverhulme Prize in 2014 whilst receiving funding from a range of international research councils.


Time to read

5 Minutes

As a feminist scholar of sex work in India, Professor Kotiswaran has systematically tracked the development of anti-trafficking policy. In adopting an academic-activist role, she has lobbied sectors of parliament, mobilised labour groups and trade unions to engage with trafficking. Her All Souls Seminar focused on her recently written paper ‘The Sexual Politics of Anti-Trafficking discourse’. Professor Kotiswaran disclosed the overarching goal of the paper was to revisit the contentious history of the sexual politics of anti-trafficking discourse and take stock of its metamorphisms since its inceptively ‘feminist’ stage in the 1990s.

A recording of this talk is available here.

Professor Kotiswaran began the seminar by engaging with the subtle and gradual expansion of anti-trafficking law and policy beyond a focal preoccupation with sex work to integrate exploitation in various labour sectors. In developing her approach, Professor Kotiswaran drew on Elizabeth Bernstein’s new book ‘Brokered Subjects: Sex, Trafficking and The Politics of Freedom’ to address the following questions:

  1. Does the broadening of the legal parameters of trafficking to various sectors imply that trafficking is no longer conflated with sex work?

  2. Does the legal de-linking of trafficking and sex work readily translate into operational practice on the ground in reducing the harassment of sex workers?

  3. What are the effects of feminist theorizing of sex work and feminist mobilizing on trafficking? Moreover, does the latter shape sex workers’ perceptions of trafficking and influence their lobbying

  4. How does the sexual politics of anti-trafficking discourses apprise the postcolonial state and unveil the multifaceted relations between the state, feminists, sex workers, conservative and left progressive movements?

  5. Should the deterministic assumption that domestic legal and policy change is predisposed to changes in the international arena remain unchecked?

After introducing the overarching questions, Professor Kotiswaran detailed the development of the anti-trafficking transnational legal order laying particular emphasis on the seminal United Nations Convention against Transnational Organized Crime and the Protocol to Prevent, Supress and Punish Trafficking in Persons, especially Women and Children (Palermo 2000). She discerned the development of the legal order as manifesting through three key stages. The formative phase or the ‘hey-day of sex work exceptionalism’ occurred between the years 2000 to 2009 wherein states conflated trafficking with sex trafficking and sex work strategically utilising this convergence as a tool of ascension within the Trafficking in Persons report rankings (hereafter TIP).

The second phase lasted from 2009 to 2014 and marked a shift away from a stringent focus on sex work towards a ‘labour paradigm’. Professor Kotiswaran held that this broadened and re-conceptualised definition of trafficking ushered in ‘the modern slavery’ discourse which incubated labour trafficking within anti-trafficking laws. From 2014 onwards, the third phase emerged featuring the explicit framing of legal interventions through the lens of slavery and forced labour. Here, Professor Kotiswaran emphasized the importance of the definitions and presumptions of trafficking in shaping the regulatory pathways adopted. She also disentangled and defined three unique approaches, namely: the criminal justice approach, the human rights approach and the labour approach.

However, despite the prolific development of a trafficking legal order, Professor Kotiswaran emphasized its poor institutionalisation by reference to the abysmal rates of convictions under anti-trafficking law. She then proceeded to analyse the potent nexus between trafficking and a crack-down on sex work and how this maintains the legacy of sex work exceptionalism within the international anti-trafficking legal framework. To this effect, she drew on evidence from various countries including Brazil which continues to define ‘trafficking’ in term of sex work and the United States wherein victims of trafficking are often arrested for prostitution-related offences.

In her quest to extricate the underlying cause for the persistent legacy of sex work exceptionalism, Professor Kotiswaran drew from Bernstein’s scholarship who argues for a ‘comprehensive theory’ that addresses the sexual, humanitarian and late capitalist dimensions of anti-trafficking discourse. Professor Kotiswaran conceded that Bernstein’s theorization of a collective relationship speaks adequately to the reinforcement of western hegemonic anti-trafficking discourse. However, she argued that within the socioeconomic and political edifice of the global south, a fuller account of the transnational mullering of anti-trafficking discourse is necessitated. To this end, she began to shed light on the Indian experience.

Professor Kotiswaran upheld ‘governance feminism’ rather than Bernstein’s ‘carceral feminism’ as a more malleable conceptual tool to fully capture the influence of feminism in policy, popular culture and its production of the sexual politics of anti-trafficking discourse. Governance feminism conceptualises the permeability of feminists and feminist ideas into the state and state-like powers. She equally examined the role of neo-liberalism and late capitalism in sustaining anti-trafficking discourses in the global south. Whilst Bernstein identifies neo-liberal capitalist policies as inducing a retreat of the welfare state in the western context, Professor Kotiswaran found an opposing expansion of welfare within the Indian context.

Within the anti-trafficking landscape, she identified two key players namely: the sex workers’ groups and the non-sex worker constituency comprising of feminists within the women’s movement and anti-trafficking feminist non-governmental organisations with radical feminist ideology. She then examined the materialist, Marxist and radical feminist schools of thought underpinning their organisation. Professor Kotiswaran considered the interplay between these two constituencies as creating a unique version of anti-trafficking discourse. To exemplify this, she considered the ‘facilitated partnership’ between neo-liberal abolitionist groups and the police and detailed how the former sought the ‘de-criminalization’ of sex workers through engagement in public interest litigation and demanding the prosecution of traffickers, improved victim protection protocols and rehabilitative and rescue homes. Professor Kotiswaran also noted how the partnership of neo-liberal abolitionist groups with the National Network for Sex Workers resulted in a stand-alone trafficking offence in the Indian Penal Code. She equally commented on the rape and death of Jyoti Pandey in Delhi as lobbying opportunity for neo-liberal abolitionist groups.

Professor Kotiswaran then turned to examine the 2018 Trafficking Bill which adopts a draconian criminal justice approach to trafficking whilst failing to repeal anti-sex work law. She held that this contradictory hybrid position reflects the wider feminist struggle to embrace the contradiction of abolishing the system of institutional prostitution, whilst supporting the rights of sex workers. She argued that this feminist polarisation and ambivalence has impeded the total abolition of sex work through criminal law whilst creating a policy vacuum that neo-liberal abolitionists readily inhabit. Ultimately, she emphasized the impossibility of reconciling and operationalising this hybrid paradigm in policy terms.

The seminar concluded with a reflection on the relationship between the national and the domestic. Ultimately Professor Kotiswaran challenged the deterministic assumption of one- directional flow of power and influence from international policy to domestic policy. She acknowledged the qualified truth of this relationship by referring to the obligations imposed on states through the Palermo protocol, TIP reports and the broadening of the definition of trafficking through international legal instruments. However, Professor Kotiswaran emphasized the ‘delicate dance’ between the domestic, international, state and civil society. Particularly, as political opportunity structures and shifts in policy remain contingent to relatively local and domestic developments.

Seminar attendees queried Professor Kotiswaran as to the role of immigration law in the passage of the 2018 Trafficking Bill and whether the plight of foreign sex workers in India is exacerbated by their alien status. To this, Professor Kotiswaran conceded that the domestic debates on trafficking have marginalized a constituency of foreign labour organisers and have failed to fully apprise the intrinsic connections between labour, migration and trafficking. Discussions then turned to Professor Kotiswaran’s challenging yet stimulating role as an academic-activist and her uphill struggle towards unifying labour groups and abolitionist groups whilst lobbying MPs.

When asked by an attendee whether she aligns with any particular interest groups, Professor Kotiswaran disclosed that her commitment to materialist feminism espoused from her legal ethnography of sex work in India and her subsequent engagement with sex workers constructing this practice as a form of reproductive labour. Another attendee sought Professor Kotiswaran’s viewpoint as to whether non-consensual pornography can be construed as a form of trafficking and unpaid labour. Professor Kotiswaran responded by noting the positioning of non-consensual pornography under the broad rubric of Article 3 of Trafficking Protocol and pre-existing definitions of trafficking consequently, arguing against the creation of an aggravated offence relating to pornography.

Blog Post by Anuoluwapo Oladapo, MSc Criminology and Criminal Justice Student, University of Oxford