What Counts as Trafficking for Sexual Exploitation? How Legal Methods Can Improve Empirical Research

Author: Madden Dempsey, Michelle

Abstract: This article, a contribution to a special issue of the Journal of Human Trafficking examining “data wars” amongst empirical researchers who purport to study the prevalence of human trafficking, explores how closer attention to legal methods may improve the validity and reliability of research regarding the prevalence of trafficking for the purpose of sexual exploitation. The author hopes to illuminate and motivate two conclusions. First, some researchers have failed to accurately analyze the legal definitions of trafficking for the purpose of sexual exploitation and instead have used inaccurately narrow definitions in their research. By so doing, they have undercounted the prevalence of trafficking and have produced scholarship that is of limited relevance to legal and policy debates regarding the regulation of prostitution. Second, some researchers have provided inadequate application of the facts in particular cases to the legal definitions of trafficking for sexual exploitation. As a result, their scholarship suffers from a lack of clarity regarding why they fail to count some cases as trafficking—and this lack of clarity contributes to a lack of reliability, since the reader is unable to discern their method for determining which cases count as trafficking and which do not. As a result of these problems, the empirical research critiqued in this article is of limited value in guiding law and policy debates regarding the regulation of prostitution.

Keywords: definitions of trafficking, empirical methods, empirical research, legal analysis, legal definitions, legal interpretation, legal methods, Palermo Protocol, prevalence studies, sexual exploitation, trafficking, TVPA