Human Trafficking, Vulnerability and the State
| Published date | 01 February 2019 |
| Date | 01 February 2019 |
| DOI | 10.1177/0022018318814373 |
| Subject Matter | Articles |
The Journal of Criminal Law
2019, Vol. 83(1) 39–54
Human Trafficking,
ª The Author(s) 2018
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DOI: 10.1177/0022018318814373
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Shahrzad Fouladvand
University of Sussex, UK
Tony Ward
Northumbria University, UK
Abstract
This article looks at human trafficking from a perspective influenced by the ‘vulnerability
theory’ developed by Martha Fineman and her associates. It draws particularly on empirical
studies of human trafficking from Albania to the UK and elsewhere. It suggests that Fineman’s
approach needs to be modified to see the state not only as ameliorating vulnerability, or failing
to do so, but as actively creating and using vulnerability to control or exploit its population. The
fact that people are placed, for political, social and economic reasons, in situations of heigh-
tened vulnerability does not of itself deprive them of agency or responsibility. People should,
however, be understood as ‘vulnerable subjects’ whose capacity for autonomy may be lost
when they are deprived of supportive social relationships. The implications of this view for the
criminal responsibility of trafficking victims are explored.
Keywords
Human trafficking, vulnerability, responsibility, duress, legal theory
Introduction
In keeping with the theme of this issue, this article focuses on the trafficking of vulnerable adults;
invulnerable adults, as well as children, are beyond its scope. But who are these invulnerable adults? To
be human is to be vulnerable—to disease, cold, hunger, the disruption of social relationships on which
we depend. As Martha Fineman, the most influential legal scholar of vulnerability, puts it, vulnerability
is ‘the primary human condition’.1
Clearly, this special issue is not intended to be about adults in general but about adults who are
vulnerable in particular ways; but this, too, can be said of most if not all victims of trafficking. To be
trafficked is to be transported (either between countries or within any country) with a view to
1. MA Fineman, ‘Vulnerability, Resilience, and LGBT Youth’ (2014) 23 Temple Political & Civil Rights Law Review 307.
Corresponding author:
Shahrzad Fouladvand, Lecturer in International Criminal Law, Sussex Law School, University of Sussex, Sussex, UK.
E-mail: s.fouladvand@sussex.ac.uk
40
The Journal of Criminal Law 83(1)
exploitation, whether in the form of sexual exploitation, labour exploitation or the removal of organs.2
While people will submit to exploitation for a variety of reasons (for example, are academics ‘vulner-
able’ to working far longer hours than we are paid for?), the exploitation involved in many cases of
human trafficking is so egregious that people would be unlikely to submit to it unless something in their
situation made them particularly vulnerable to coercion, manipulation or deception. It seems a reason-
able assumption and, as we shall see, one borne out by evidence, that most victims of trafficking are
vulnerable, not just in the ‘ontological’ sense that all humans are vulnerable, but in the sense that their
particular situation makes them more vulnerable than others.3
In the context of human trafficking, there is little sense in distinguishing between vulnerable adults
and adult victims in general. It is, of course, possible to identify people whose vulnerability stems in part
from their physical or mental characteristics, such as, those with learning disabilities (considered in
greater detail in Brookbanks’ article in this issue). But as Jonathan Herring argues in Vulnerable Adults
and the Law, such people are especially vulnerable only when they lack the social support that they
need.4 Theirs, too, is a particular type of situational vulnerability. The focus of our inquiries should be on
what creates situational vulnerability and what can be done to counter it.
By shifting our focus in this way, we can avoid attributing vulnerability in an essentialising fashion to
certain social groups.5 Such attributions can produce a doubly invidious effect. Those framed as ‘vul-
nerable’ can be treated as lacking in agency and in need of paternalistic, coercive control, while those not
deemed vulnerable can be stigmatised as a threat—and therefore in need of coercive control without any
benevolent fac¸ade. We can see this clearly in relation to human trafficking. Trafficking for sexual
exploitation is often conflated with sex work in general to produce an image of all sex workers as
passive victims in need of rescue. This obscures the possibility that many sex workers may be exercising
meaningful choice, albeit often with a limited and unattractive range of options. Coercive measures
against sex work can then be justified as part of an anti-trafficking policy and in the interest of the
paternalistic ‘rescue’ of sex workers. Those who cannot be portrayed as fitting the passive-victim
stereotype may be punished rather than helped.6 Trafficking, in contrast, is often also (erroneously)
equated with people smuggling and used to justify a tightening of border controls.
Border controls, however, are an important source of situational vulnerability. As a recent report by
the Anti-Trafficking Monitoring Group (ATMG) argues:
a number of measures in the [Immigration Act 2016] increase vulnerability of migrants to exploitation,
including:
Measures making it illegal for those without status to rent accommodation;
Measures creating criminal offences for landlords who ‘know or have reasonable cause to believe
tenants are disqualified from renting as a result of their immigration status;’
New eviction powers to proprietors;
A new offence of illegal working.7
2. Modern Slavery Act 2015, s. 2.
3. On the distinction between ontological and situational vulnerability, see E Gilson, The Ethics of Vulnerability: A Feminist
Analysis of Social Life and Practice (Routledge, London 2014).
4. J Herring, Vulnerable Adults and the Law (OUP, Oxford 2016) 2.
5. VE Munro and J Scoular, ‘Abusing Vulnerability? Contemporary Law and Policy Responses to Sex Work in the UK’ (2012) 20
Feminist Legal Studies 189, 196; MA Fineman, ‘The Vulnerable Subject and the Responsive State’ (2010) 60 Emory Law
Journal 251, 266; K Brown, K Eccleston and N Emmel, ‘The Many Faces of Vulnerability’ (2017) 16(3) Social Policy &
Society 497.
6. A Carline, ‘Of Frames, Cons and Affects: Constructing and Responding to Prostitution and Trafficking for Sexual Exploitation’
(2012) 20 Feminist Legal Studies 207, 211; J Scoular and M O’Neill ‘Regulating Prostitution: Social Inclusion, Responsibi-
lization and the Politics of Prostitution Reform’ (2007) 47 British Journal of Criminology 764.
7. Anti-Trafficking Monitoring Group, Before the Harm Is Done: Examining the UK’s Response to the Prevention of Trafficking
(ATMG, London 2018) 43 (footnotes omitted).
Fouladvand and Ward
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Moreover, as ATMG points out, rules tying overseas domestic workers to specific employers make
then vulnerable to abuse and exploitation. The rise of homelessness, linked to austerity measures, ‘has
meant a rise in the number of people who are extremely vulnerable to trafficking and exploitation’; and a
programme of returning trafficked migrants to their countries fails to address their vulnerability to re-
trafficking.8
The broader point made by the ATMG is that the causes of vulnerability are largely systemic9 and
attributable in particular to the laws, policies and practices of states. We shall develop a similar argument
in relation to one state which is perceived to be a major source of trafficking to the UK and has
experienced widespread internal human trafficking, namely Albania.
The rest of the article is structured as follows. First, we examine Fineman’s approach to vulnerability
and explain why we are adopting it only with some significant modifications. We then turn to our case
study of Albania, which can be seen both as a vulnerable state and one which produces situations of
particular vulnerability to human trafficking. In light of this, we then look at the ethical and legal
questions concerning the responsibilities of citizens, corporations of the state towards victims of traf-
ficking and the responsibility of victims of trafficking for offences they may commit as a result of their
victimisation. The main point that emerges from the discussion of Albania is that the mere fact that
people are in a vulnerable situation does not deprive them of agency or responsibility. Organised crime
may provide people with resources with which they attempt to reduce their vulnerability, but it may then
place them in a situation in which any meaningful agency is lost. The different ways in which the law on
duress, abuse of process and the defences under the Modern Slavery Act 2015, s. 45 respond to this
situation are discussed towards the end of the article.
Vulnerability, the Human Condition and Human Trafficking
Several influential moral and political theories, notably those of Judith Butler,10 Robert Goodin, Brian
Turner and Alasdair Macintyre,11 stress the importance of vulnerability as an aspect of the human
condition and a source of moral obligations. In legal studies, however, the term ‘vulnerability theory’
is associated particularly with the work of Martha Fineman12 and her associates in the Vulnerability and
the Human Condition Initiative.13 For Fineman, vulnerability as an aspect of the human condition is
constant and universal, even though...
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