Mar 14, 2008

Legalization and Criminalization of Illicit Trade

by Tim Ogden

Experts in a variety of fields passionately debate how to combat illicit trade in everything from drugs to endangered species to, worst of all, people. There are rational, credible arguments for both criminalizing and aggressively prosecuting those engaged in illicit trade and for legalizing and regulating the trade. Criminalization advocates typically focus on the need to eliminate the trade because of the damage that it does; legalization advocates typically argue that elimination is impossible and therefore criminalization simply makes the trade more lucrative for those willing to break the law, more violent, and ultimately harder to control.

Experts on human trafficking often engage in passionate debate on the impact that the legalization of prostitution has. I recently got to hear the differing positions of two women who battle sex trafficking from opposite sides of the planet. Iana Mattei, the founder of a rescue and rehabilitation shelter for trafficked women in Romania, argues that legalization and regulation of prostitution makes it harder for sex traffickers to hide and easier for trafficked women to escape their captors. Ruchira Gupta, the founder of a similar program in India, believes that legalization of prostitution makes it easier for traffickers to hide in broad daylight while they bribe police or use other techniques to evade prosecution.

Both scenarios are plausible, and unfortunately there is little evidence to back up either position. Some recent stories, however, indicate that the tide is turning in favor of Ms. Gupta. The New York Times reports that city officials in Amsterdam are moving away from a permissive approach to prostitution. Amsterdam legalized prostitution in 2000 in an effort to protect women working in the sex trade. The article quotes the mayor of Amsterdam, Job Cohen, on how the strategy has backfired: ‘“We realize that this hasn’t worked, that trafficking in women continues,” he said. “Women are now moved around more, making police work more difficult.”’ The Dutch authorities are seeing all manner of crime increase in the red-light district as organized crime has moved in to take advantage of the open atmosphere. Meanwhile, authorities in Sydney, Australia recently busted a South Korean sex trafficking ring. In a strange twist allowed by Australia’s legalization of the sex trade, the enslaved women were recruited to work in legal brothels. Once in Australia however, they were imprisoned in the brothels, unpaid and forced to work for 20 hours a day.

Meanwhile, an article in the Washington Post serves as a reminder that enslavement of people within their own native borders, and in sectors outside of the sex trade, remains the far larger issue. This is a practice where legalization is not an option.

On the other hand, in another arena of illicit trade, the trade in endangered animals and animal parts, policy-makers and NGOs have focused heavily on criminalization. The evidence there according to an article in the Economist this week is hardly an argument for that approach. The ivory trade was banned twenty years ago, yet the percentage of the elephant population killed each year has held steady and may even have risen slightly. Elephant populations have recovered in southern Africa, while plummeting in other regions. The impact of criminalization of trade on other species such as black rhinos has been far worse. Banning the trade in rhino parts has caused a dramatic increase in poaching at the same time that it has eliminated economic incentives for protecting and managing populations. Criminalization is especially a problem when the primary cause of a species’ decline is destruction of habitat.

And so, the debate and the need for creative approaches rages on.