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Human trafficking victims: more than virgins and whores

By Misa Han - posted Monday, 7 November 2011

As a young woman, I am familiar with what Freud might call the Madonna/whore dichotomy and what a friend might call the 'to marry or to fuck' dilemma. In the past week alone, I have baked an apple pie from scratch and went out clubbing after midnight, downloaded a celibacy app and bought a new packet of condoms, listened to a sermon and read the ADFA report.

What I am not familiar with, however, is seeing the joke being played out on a policy level, especially when the rights of the most vulnerable members of society, not Britney Spears' chastity pledge, are at stake. Under Australia's people visa framework, victims of human trafficking receive long-term protection conditional upon their participation in the investigation and prosecution of human traffickers. This, in turn, entrenches the stereotypes of 'genuine' victims who deserve protection, on one hand, and 'opportunistic' economic migrants, on the other.

In 2009, the government introduced a series of amendments to the People Trafficking Visa Framework to 'provide for a more balanced approach to combating trafficking while providing protection to victims'. This included abolishing the requirement that the law enforcement authority must identify the victim as a 'person of interest' to the criminal process and allowing 'suspected victims of human trafficking' to remain in Australia on the Bridging F visa for 45 days. The Support for Victims of People Trafficking Program (including temporary accommodation, medical and legal services, training and social support) was made available for trafficking victims regardless of their visa. This means that, at least during the initial period of 45 days, unlawful non-citizens who are identified as 'suspected victims' can access the support program without being involved in human trafficking investigations. This also means that victims on 'substantive visas' – such as workers' or student visa – can access the support program without switching to the Bridging F visa and giving up their rights to study, work or welfare.


After the honeymoon period of 45 days, the reality hits and any further trafficking visa is linked to the victims' participation in the criminal process. The Bridging visa F may be extended to 90 days only if victims are willing to assist but unable to because of trauma or because their information is insufficient to sustain an investigation. The Criminal Justice Stay visa may be issued only if the victims are 'required for law enforcement purposes'. Access to permanent residency under the Witness Protection (Trafficking) (permanent) visa requires the Attorney-General to certify that the person made a 'contribution to and cooperated closely with' the prosecution or investigation of human traffickers and the Minister of Immigration to consider the person to be in danger if returned home.

The process focuses on the victim's ability to participate in the criminal process, which relies on the strict distinction between voluntary labour and exploitation. For example, the Attorney-General's certificate requires involvement in the prosecution of a person 'who was alleged to have trafficked a person or who was alleged to have forced a person into exploitative conditions'.

For better or for worse, some trafficking victims make choices based on a range of factors such as bills, family and visa status. Some women might be compelled to voluntarily accept exploitative work, while an unlawful domestic worker who may find themselves working in exploitative conditions might be unable to 'quit' the way the rest of us quit the burger job at Maccas. This means that migrants who do not hold a substantive visa and are unwilling or unable to participate in the criminal process are vulnerable to withdrawal of support services and eviction after the initial Bridging visa F expires.

Such process immediately puts the victims into two categories: 'opportunistic' economic migrants whose unwillingness or inability to cooperate call their credibility into question and 'genuine' victims who are more deserving of protection because they have proven themselves by cooperating with the law enforcement authority. This framework ignores the psychological damage and the threats of reprisals of being involved in the criminal process itself.

According to the Department of Immigration and Citizenship Annual Report, only 42 Witness Protection visas and 29 Criminal Justice Stay visas were granted in the year 2010-11. While the actual number of trafficking victim is unknown, the low number of visas granted signals that the Madonna-whore dichotomy might not be effective in protecting trafficking victims for more than 45 days. Divorcing the visa framework from the prosecution of human traffickers would be a fair way of treating the victims as women with complex economic and social needs rather than as virgins and whores, neither of which, to me, seems unsavoury.

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About the Author

Misa Han is a final year law student at the University of Sydney. She is a writer, cartoonist and Twitter.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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