Sex Trafficking: A Private Law Response

Sex Trafficking: A Private Law Response (Routledge, 2013)

Posted: 8 Aug 2013

Date Written: July 11, 2013

Abstract

Sex Trafficking: A Private Law Response examines existing and potential causes of action against sex traffickers, clients and the state and argues for fair and effective private law remedies. Combining a theoretical inquiry about the borders of liability in torts and restitution with a political commitment to protecting the interests of victims of sex trafficking, this book offers a comparative doctrinal and socio-legal analysis of private law remedies, their justification, and their effectiveness. All those directly involved in breaching the rights of victims of sex trafficking should compensate them for their losses, and make restitution of the profits made at their expense.

The book calls for extending the scope of traffickers’ liability and for extending the scope of available defendants — beyond traffickers — to clients and the state. The remedies for traffickers’ obligations to make restitution of profits and to compensate their victims in torts should be cumulative. The state should make restitution to victims of what it confiscated from traffickers as proceeds of crime, since the money belongs to victims, not to traffickers. Clients who had direct contact with victims should be strictly liable to victims in battery, and more controversially, in the proprietary tort of conversion. Clients who purchased commercial sex indiscriminately — where there is the possibility that their consumption contributes to trafficking — should be liable to victims under a theory of negligence, although such liability should be limited in terms of time, geographical scope and amount.

Some of the claims made in the book and issues discussed include recognising a duty of care for contribution to trafficking by posing demand in the market; overcoming complex factual causation problems; deviating from the principle of full compensation by imposing liability on clients for an amount falling short from her entire damage from being trafficked, and yet not purely proportional; allowing the victim to sue clients in conversion for the direct sexual contact with her, as if she were a chattel; imposing liability on clients for direct contact in battery, despite the victims’ apparent consent to the sexual contact; expanding the exercise of tracing of proceeds to what is paid by the client to the trafficker in exchange for the victim’s forced labour; viewing the trafficker as the victim’s fiduciary; and challenging the traditional position that a claim by a non-forced prostitute against a client who received a service and refuses to pay is barred as contravening the public order.

To the anti-trafficking literature and the feminist debate on prostitution, the book offers a course of action which enables to transcend some of these debates, is empowering to victims and cannot be accused of forcing the status of victims on consenting sex workers.

Keywords: Torts, Restitution, Sex Trafficking, Prostitution, Negligence, Battery, Conversion, Strict Liability

JEL Classification: K13, K31, K11, K42

Suggested Citation

Keren-Paz, Tsachi, Sex Trafficking: A Private Law Response (July 11, 2013). Sex Trafficking: A Private Law Response (Routledge, 2013), Available at SSRN: https://ssrn.com/abstract=2292752

Tsachi Keren-Paz (Contact Author)

Sheffield Law School ( email )

Bartolomé House
Winter Street
Sheffield, S3 7ND
United Kingdom

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