Antecedentes y Referentes Teóricos

Unfortunately, all the new laws and initiatives came too late for the children of Baan Nua. A week before I left the field, the first confirmed AIDS-related death shocked an already vulnerable community and it quickly disbanded. Some families traveled to Bangkok while others returned to rural communities, continuing to sell sex to foreigners while they still could. Neither foreign laws nor initiatives of extraterritoriality, nor local laws on child protection would have made much impact on their lives.

The children and their families had no interest in seeing their clients prosecuted or even stopped from entering Baan Nua. In the absence of any social support or welfare assistance, these men were the only form of protection the community had—no matter how damaging that might seem to outsiders. The people of Baan Nua would never testify against these “friends.”

Secondly, changes in Thai law that came into effect in 1996 meant that parents could be prosecuted if they allowed or encouraged their children to work as prostitutes.87 _{Given the emphasis that the children placed on family}

relationships and filial obligations, such laws would have made it extremely difficult for the children to have asked for help, even if they recognized that they needed it. Keeping the family together was their primary justification for what they did; the prosecution and imprisonment of their parents was their worst fear. As suggested previously, initiatives to end child prostitution need to work with parents and ensure, as far as possible, that families stay together. Few children would go to the police or welfare authorities if they believed that their parents could be prosecuted. Furthermore, such a law gave the state immunity by privatizing the issue and laying the blame at the feet of the family, whereas wider social, cultural, and economic factors were also crucially important.

What all child prostitutes need are sympathetic interventions which take account of their individual circumstances, their own values and, if appropriate, enable them to stay with their parents. What are not helpful are

punitive sanctions against the adults they love most. It needs to be acknowledged that not all child prostitutes in Thailand (or, indeed, elsewhere) have been trafficked or debt-bonded, and many will one day leave prostitution. Policies need to be formulated to help these children now as they make the transitions out of prostitution.

While a good body of ethnographic evidence about the lives of young prostitutes in Thailand has now been built up, the findings of such studies have not always filtered down to NGOs and the wider public. Trafficking and prostitution continue to be thought of as interchangeable, which can lead to unhelpful interventions which are, at best, futile; and, at worst, damaging to the very children they are designed to help. There is still not enough of an understanding of the different types of prostitution, its links (or lack thereof) to trafficking, the clients of these children, the different interventions needed, or the scale of the problem. Future research needs to take the children’s own views as a starting point and promote appropriate interventions on this basis. Children need to be partners in this process, consulted and involved at every stage. Their strength and resilience needs to be acknowledged, and processes must be put in place so that children can access help without risk to their parents.

Trafficking and prostitution will always remain emotive issues, especially when they concern children. As more cases are revealed, there will always be outrage and calls for more to be done to combat the problem. Legal solutions are a useful starting point, but they can also be blunt instruments in need of constant and sympathetic enforcement. Certainly, national and international NGOs—backed by international law—have the very best of intentions, but without a full understanding of the problems on the ground, their proposed solutions can exacerbate the problem and alienate the very children they most want to help.

1 _{Jyoti Sanghera, Unpacking the Trafficking Discourse, in T}

RAFFICKING AND PROSTITUTION RECONSIDERED:NEW PERSPECTIVES ON MIGRATION,SEX WORK, AND HUMAN RIGHTS,3–24 (Kamala Kempadoo, Jyoti Sanghera & Bandana Pattanaik, eds. 2005) [hereinafter Sanghera].

2 _{G.A. Res. 55/25, Annex II, U.N. Doc. A/Res/55/25 (Jan. 8, 2001), [hereinafter} Palermo Protocol]. This Protocol supplemented the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, Mar. 21, 1950, 96 U.N.T.S. 271, and gave added protections to those discussed in the Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13.

3 _{Palermo Protocol, supra note 2, at Art. 2. According to the United Nations Office on} Drugs and Crime, as of 2010, 110 States have signed and ratified the Protocol although conviction rates remain very low and few victims are helped or even identified. Human Trafficking, United Nations Office of Drugs and Crime http://www.unodc.org/unodc/en /human-trafficking/what-is-humantrafficking.html?ref=menuside (last visited March 3, 2011).

4 _{G.A. Res. 55/25, Annex II, Article III, U.N. Doc. A/Res/55/25 (Jan. 8, 2001).}

5 _{Jo Doezema, Who Gets to Choose? Coercion, Consent, and the UN Trafficking}

Protocol, 10 GENDER & DEV. 20, 20–21 (Mar. 2002), available at

http://www.jstor.org/sta ble/4030678; see also BRIDGET ANDERSON & JULIA O’CONNELL-DAVIDSON, TRAFFICKING—A DEMAND LED PROBLEM? 8–9 (2002) [hereinafter ANDERSON].

6 _A

NDERSON, supra note 5, at 7.

7 _{See Melissa Ditmore, Trafficking in Lives: How Ideology Shapes Policy, in} TRAFFICKING AND PROSTITUTION RECONSIDERED:NEW PERSPECTIVES ON MIGRATION, SEX WORK, AND HUMAN RIGHTS 107, 109 (Kamala Kempadoo, Jyoti Sanghera & Bandana Pattanaik eds., 2005) [hereinafter Ditmore].

8 _{Kamala Kempadoo, From Moral Panic to Global Justice: Changing Perspectives on}

Trafficking, in TRAFFICKING AND PROSTITUTION RECONSIDERED:NEW PERSPECTIVES ON MIGRATION,SEX WORK, AND HUMAN RIGHTS vii, xxiii (Kamala Kempadoo, Jyoti Sanghera & Bandana Pattanaik eds., 2005) [hereinafter Kempadoo].

9 _{For accounts of these conditions, see generally Kevin Bales,D}

ISPOSABLE PEOPLE:NEW SLAVERY IN THE GLOBAL ECONOMY (2004) and Christien van den Anker, THE POLITICAL ECONOMY OF SLAVERY (2004).

10 _{Sanghera, supra note 1, at 11; Anderson,supra note 5, at 7.} 11 _A

NDERSON, supra note 5, at 7.

12 _{In particular, see Sanghera, supra note 1 at 11.} 13 _A

NDERSON, supra note 5; Kempadoo, supra note 8, at vii–xxxiv; Sanghera, supra

note 1, at 3.

14 _{Kempadoo, supra note 8; Sanghera, supra note 1.} 15 _{Elaine Pearson, H}

UMAN TRAFFIC, HUMAN RIGHTS: REDEFINING VICTIM PROTECTION,(2002); Ditmore, supra note 7; Siriporn Skrobanek, Nattaya Janthakeero and Chutima Boonpakdi, THE TRAFFIC IN WOMEN: HUMAN REALITIES OF THE INTERNATIONAL SEX TRADE (1997).

16 _K

17 _{For a notable exception see Sanghera, supra note 1, at 11.}

18 _{Kinsey Alden Dinan, United Nations Trafficking Protocol, in E}

NCYCLOPEDIA OF PROSTITUTION AND SEX WORK 512,512–13 (Melissa Hope Ditmore ed.,2006).

19 _{Convention on the Rights of the Child, 1577 U.N.T.S. 3 (1989) [hereinafter UNCRC].} Article 34, for example, forbids anyone under the age of eighteen from becoming involved in any form of prostitution or pornography.

20 _{Sanghera, supra note 1.}

21 _{Coalition Against Trafficking of Women, Child Trafficking, http://www.catwinternati} onal.org/child_trafficking.php (last visited Aug. 9, 2010).

22 _{Reports presented by the Comm. of Enquiry into Traffic in Women and Children in the}

East, League of Nations Doc. C.849.M.393.1932.IV, 312 (1932). 23 _Id.

24 _{Kempadoo, supra note 8, at xi.} 25 _H

EATHER MONTGOMERY, MODERN BABYLON? PROSTITUTING CHILDREN IN THAILAND (2001).

26 _{Ryan Bishop & Lillian S. Robinson, N}

IGHT MARKET:SEXUAL CULTURES AND THE THAI ECONOMIC MIRACLE (1998); MONTGOMERY, supra note 25.

27 _{For examples on the similarities between these stories and those told one hundred} years earlier during the white slavery panics of the 1880s, see Jo Doezema, Loose Women or Lost Women? The Re-emergence of the Myth of White Slavery in Contemporary Discourses of Trafficking in Women, 18 GENDER ISSUES 23, 23 (2000).

28 _{Marlise Simons, The Littlest Prostitutes,N.Y.T}

IMES, Jan. 16, 1994, at 35, available at

http://www.nytimes.com/1994/01/16/magazine/the-littlestprostitutes.html?pagewanted= all&src=pm.

29 _{Margot Hornblower, The Skin Trade, T}

IME, June 21, 1993, at 28.

30 _{Wikipedia, Don’t! Buy! Thai!, http://en.wikipedia.org/wiki/Don’t!_Buy!_Thai! (last} visited Aug. 9, 2010).

31 _{Heather Montgomery, Child Sex Tourism: Is Extra-Territorial Legislation the}

Answer?, in TOURISM AND CRIME:KEY THEMES 69,72–73(David Botterill & Trevor Joneseds., 2010).

32 _{Judith Ennew, et. al, C}

HILDREN AND PROSTITUTION:HOW CAN WE MEASURE AND MONITOR THE COMMERCIAL SEXUAL EXPLOITATION OF CHILDREN? LITERATURE REVIEW AND ANNOTATED BIBLIOGRAPHY 24–30 (1996); Sanghera, supra note 1. 33 _{Maggie Black, Home Truths,N}

EW INTERNATIONALIST, Feb. 1994, at 11–12, available at http://www.newint.org/features/1994/02/05/home/.

34 _{Quoted in Alison Murray, Debt-bondage and Trafficking: Don’t Believe the Hype, in} GLOBAL SEX WORKERS:RIGHTS, RESISTANCE, AND REDEFINITION 51, 55 (Kamala Kempadoo & Jo Doezema, eds. 1998); see also Ennew, supra note 32, at 24–30; MONTGOMERY, supra note 25.

35 _{JeanLa Fontaine, C}

HILD SEXUAL ABUSE17 (1990).

36 _{In 1989 Norwegian Save the Children (Redd Barna) published a full report, funded by} NORAD (Norwegian Agency for International Development), on the extent and nature of child prostitution. It gave no statistics and acknowledged the difficult nature of defining and counting child prostitutes. It also emphasized the unreliability of many of the sources

for these numbers. OVE NARVESEN, THE SEXUAL EXPLOITATION OF CHILDREN IN DEVELOPING COUNTRIES24 (1989).

37 _{Philip Guest, Guesstimating the Unestimateable: The Number of Child Prostitutes in}

Thailand, in CHILD PROSTITUTION IN THAILAND:A DOCUMENTARY ANALYSIS AND ESTIMATION OF THE NUMBER OF CHILD PROSTITUTES 73, 94–95(Orathai Ard-am & Chanya Sethaput eds., 1994); Thomas Steinfatt, Trafficking, Politics and Propaganda, in

ENCYCLOPEDIA OF PROSTITUTION AND SEX WORK 494, 497 (Melissa Hope Ditmore ed., 2006).

38 _{Steinfatt, supra note 37,at 498.}

39 _{For ethnographic accounts providing different perspectives about the nature of the} problem, see Marjorie A. Muecke, Mother Sold Food, Daughter Sells Her Body: The Cultural Continuity of Prostitution, 35 SOC.SCI.MED. 891 (1992); Montgomery, supra

note 25; Lisa Rende Taylor, Dangerous Trade-offs: The Behavioral Ecology of Child Labor and Prostitution in Rural Northern Thailand, 46 CURRENT ANTHROPOLOGY 411 (2005). For excellent introductions and challenges to the dominant narratives, see generally, JULIA O’CONNELL DAVIDSON, CHILDREN IN THE GLOBAL SEX TRADE, (2005); Steinfatt, supra note 37, at 496.

40 _{This is not to claim that there is no trafficking, only that the scale and extent have been} exaggerated and confused with other forms of prostitution. It should also be noted that not all child trafficking in Thailand is for the purposes of sexual exploitation, and there is some evidence of Cambodian children being brought to Thailand for the purposes of begging or adoption. See Steinfatt, supra note 37.

41 _{Steinfatt, supra note 37, at 497.}

42 _{It is also worth noting that some commentators will not use the phrase “child} prostitution,” believing that as long as children cannot consent to sexual exploitation they should always be referred to as prostituted children. See MONTGOMERY, supra note 25, at 89–91.

43 _{For a discussion of the links between survival sex and street children, see Jody, M.} Greene, Susan T. Ennett, & Christopher Ringwalt, Prevalence and Correlates of Survival Sex among Runaway and Homeless Youth, 89 AM J. OF PUBLIC HEALTH 1406 (1999). 44 _O’C

ONNELL DAVIDSON,supra note 39; Centre for the Protection of Children’s Rights, PREVENTION OF TRAFFICKING AND SALE OF CHILDREN IN THAILAND (unpublished manuscript).

45 _O’C

ONNELL DAVIDSON, supra note 39; Centere For the Protection of Children’s Rights, supra note 44; ANDERSON,supra note 5; see generally LEONARD TERRITO & GEORGE KIRKHAM, INTERNATIONAL SEX TRAFFICKING OF WOMEN AND CHILDREN: UNDERSTANDING THE GLOBAL EPIDEMIC (2010).

46 _{Official figures are difficult to find. In addition, NGO and media reports are often} extremely unreliable and fail to disaggregate by age and sex. See Yvonne Rafferty,

Children for Sale: Child Trafficking in Southeast Asia, 16 CHILD ABUSE REV. 401 (2007), available at http://onlinelibrary.wiley.com/doi/10.1002/car.1009/pdf. For a discussion of the political charges made of such numbers, see also Steinfatt, supra note 37.

47 _L

ESLIE JEFFREY, SEX AND BORDERS: GENDER, NATIONAL IDENTITY, AND PROSTITUTION POLICY IN THAILAND (2002).

48 _A

SIA WATCH, AMODERN FORM OF SLAVERY TRAFFICKING OF BURMESE WOMEN AND GIRLS INTO BROTHELS IN THAILAND(1993).

49 _{In 1995, Coalition Against Trafficking in Women-Asia Pacific, claimed on its website} that “[r]epatriated prostituted Burmese women found to be HIV infected were killed by authorities.” However, this report was unsourced and there has been no independent verification. Coalition Against Trafficking in Women, Burma-Myanmar, http://www.catwinternational.org/factbook/Burma_Myanmar.php (last visited March 3, 2011).

50 _{See generally M}

ONTGOMERY, supra note 25.

51 _{See US Department of StateBureau of Democracy, Human Rights, and Labor, Human}

Rights Report,THAILAND (2008), available at http://www.state.gov/g/drl/rls/hrrpt/2007 /100539.htm.

52 _{In the Thai newspaper, The Nation, Pol. Lt. Gen. Sudjai Yanrat was quoted as saying,} “In my opinion it is disgraceful to let Burmese men frequent Thai prostitutes. Therefore, I have been flexible in allowing Burmese prostitutes to work here. Most of their clients are Burmese men.” Ranong Brothel Raids net 148 Burmese Girls, THE NATION (Thailand), July 16, 1993, at A1.

53 _{Rakkit Rattachumpoth, The Economics of Sex, T}

HE NATION (Thailand), Feb. 3, 1994, at 3; Samut Sakhon, Two Burn to Death in Brothel Fire,BANGKOK POST (Thailand),

June 13, 1994, at 7.

54 _{See Pamela Da Grossa, Kamphaeng Din: A Study of Prostitution in the All-Thai}

brothels of Chiang Mai City, 4 CROSS-ROADS, 1–7 (1989); see also GRAHAM FORDHAM, ANEW LOOK AT THAI AIDS:PERSPECTIVES FROM THE MARGIN (2005).

55 _T

AYLOR, supra note 39, at 416. 56 _Id.

57 _Id.

58 _{See Muecke, supra note 39.} 59 _{Id. at 897.}

60 _Id.

61 _{See generally F}

ORDHAM, supra note 54. 62 _{Black, supra note 33, at 13.}

63 _{Michelle Gilkes, Prostitution in Thailand, 30 (Unpublished B.A. Thesis, Long Island} University) (On file with author).

64 _{Black, supra note 33, at 13.} 65 _J

UDITH ENNEW, THE SEXUAL EXPLOITATION OF CHILDREN 83 (1986).

66 _{For a full discussion of methods and ethical dilemmas, see Heather Montgomery,}

Working with Child Prostitutes in Thailand: Problems of Practice and Interpretation 14

in CHILDHOOD 415 (2007). I carried out this research as part of a doctorate in social anthropology between 1994 and 1995. Although many anthropologists use the ethnographic present when discussing their research, I have used the past tense to describe the situation that I worked in. Shortly after I finished the research, the community disbanded, and the inhabitants of Baan Nua migrated to other parts of Thailand. For this reason, the use of the past tense seems most apt.

68 _{See generally P}

ASUK PHONGPAICHIT, FROM PEASANT GIRLS TO BANGKOK MASSEUSES (1982).

69 _{Such a view is not uncommon, and other studies with both adults and children have} shown that how a person spends their earnings can help mitigate the stigma of sex work. For a vivid example of this see PATTY KELLY, LYDIA’S OPEN DOOR:INSIDE MEXICO’S MOST MODERN BROTHEL (2008).

70 _M

ONTGOMERY, supra note 25, at 82–84.

71 _{Brian M Willis & Barry S Levy, Child Prostitution: Global Health Burden, Research}

Needs, and Interventions, 359 THE LANCET 1417 (2002), available at

http://www.popcenter.org/problems/trafficked_women/PDFs/Willis&Levy_2002.pdf. 72 _{For a discussion of the “incomplete commercialization” of prostitute/client} relationships in Thailand, see Eric Cohen, Thai Girls and Farang Men: The Edge of Ambiguity, 9 ANN TOURISM RES 403 (1982). See also generally Black, supra note 33; FORDHAM, supra note 54.

73 _{Heather Montgomery, Motherhood, Fertility and Ambivalence among Young}

Prostitutes in Thailand, in MANAGING REPRODUCTIVE LIFE:CROSS CULTURAL THEMES IN SEXUALITY AND FERTILITY,71–84,(Soraya Tremayne, ed. 2001).

74 _M

ICHAEL HIRST, JURISDICTION AND THE AMBIT OF THE CRIMINAL LAW 268 (2003). 75 _{See C. Michael Hall, The Legal and Political Dimensions of Sex Tourism: The Case of}

Australia’s Child Sex Tourism Legislation, in SEX TOURISM AND PROSTITUTION: ASPECTS OF LEISURE,RECREATION, AND WORK, 87–96 (Martin Oppermann ed., 1998); NATIONAL CENTER FOR MISSING AND EXPLOITED CHILDREN, PROSTITUTION OF CHILDREN AND CHILD-SEX TOURISM: AN ANALYSIS OF DOMESTIC AND INTERNATIONAL RESPONSES, (1999); see generally JEREMY SEABROOK, NO HIDING PLACE:CHILD SEX TOURISM AND THE ROLE OF EXTRA-TERRITORIAL LEGISLATION (2000).

76 _{For a summary of the laws in each country see W}

ORLD TOURISM ORGANISATION, PROTECTION OF CHILDREN IN TOURISM—LEGISLATION,http://www.unwto.org/protect _children/campaign/en/legislation.php?op=1&subop=7 (last visited Aug. 9, 2010). 77 _{Since 1997, there have been five convictions in the UK, at least sixty-five in the US,} and twenty-eight in Australia. CHRISTINE BEDDOE, RETURN TO SENDER:BRITISH CHILD SEX OFFENDERS ABROAD—WHY MORE MUST BE DONE, 18 (2008), available at

http://lastradainternational.org/lsidocs/Return_to_Sender.pdf. 78 _M

ONTGOMERY, supra note 25. 79 _{Montgomery, supra note 31.} 80 _Id.

81 _Id.

82 _{See generally F}

ORDHAM, supra note 54. 83 _M

ONTGOMERY, supra note 25; FORDHAM, supra note 54.

84 _{It is also worth noting a decline in the population of girls aged between ten and sixteen} which has also led to a decline in the overall numbers of children entering prostitution from the Chiang Rai region. Simon Baker, The Changing Situation of Child Prostitution in Northern Thailand: A Study of Chiang Rai (Dec. 10, 2000), available at

http://www.childtrafficking.com/Docs/baker_2000_changing_situation_child_prostitutio n_thailand_5.pdf.

85 _{Baker, supra note 84, points out, however, that there have been criticisms from} community groups that not enough money is given to parents so that it is still more profitable for their daughters to enter prostitution. It is also unclear as to how successful these schemes are long term, whether they keep girls out of the sex trade permanently or simply for a few more years.