Abstract

Sex trafficking thrives on intersectional inequality and reinforcing

layers of vulnerability. Sex trafficking exists on a continuum of

sexualized violence, from microaggressive sexual harassment to

macroaggressive gang rapes, all of which create vulnerability in the

victim and perfect sovereignty in the perpetrator. Sexualized violence

performs power, as it is raced, classed, and gendered. Power not only

requires performance, but it necessitates repetitive reenactments of

domination in order to normalize its compulsive and pathological nature.

Lynchings, police shootings, gang rapes, and sex trafficking are all

performances of power on vulnerable bodies through which power

perfects itself. The same inequality that creates the necessary

preconditions for vulnerability to violence in the first instance, also

obfuscates or masks power's pathology and compulsivity in the

investigative and adjudicative processes. By way of illustration, victim

blaming renders the pathology of the perpetrator invisible because it

removes accountability from the perpetrator and shifts blame onto the

victim. Shifting blame onto the victim obfuscates or hides power's

omnipresence, compulsiveness, and pathology. The victim blaming

process is pervasive, systemic, and entrenched.

Without proper interventions, sex trafficking cases can become

ritualized spectacle, where sexualized violence as well as its

accompanying investigation and adjudication convince the factfinder of

the pathology of the victim and the sovereignty of the perpetrator. The

pathology that surrounds victims of sexualized violence adversely

impacts their credibility and extends narratives about male entitlement to

vulnerable bodies. The recent cases involving R. Kelly and Cyntoia

Brown illustrate these points. In the case of singer, song writer Kelly, his

videotaping sex with an underaged black female resulted in an acquittal.

Similarly, Brown was 16 when she shot her 43-year-old white pedophile

purchaser of sex. Brown's race (black), however, rendered her childlike

qualities, claims of innocence, and arguments involving self-defense

invisible. Before receiving clemency, Brown received a life sentence. In

both cases, the victims' race, class, and gender rendered them

hypersexualized and their victimization invisible. In both cases, the

victims were readily detectible for purposes of pathology, but not

humanity. In both cases, the victims were raced as black and gendered as

female. In both cases, neither victim was entitled to innocence or

childhood. Both cases reflect an ongoing historical tendency to

hypersexualize black females as a justification for their sexual

exploitation.

Both cases illustrate that problematic, often half-hearted,

prosecutions and bias saturated jurors can result in an absence of charges

and acquittals. This absence of accountability can license sexualized

violence with impunity and repeat rituals of spectacle. Like failed

adjudications involving police shootings of the societally vulnerable,

lackluster sex trafficking adjudication can perform the same task as the

violence itself- the exploitation and vilification of the victim, the

overvalorization or hypervalorization of the assailants, and the

reassurance of patriarchal order, entitlement, preeminence, vindication,

safety, and security.

Without proper interventions, sex trafficking investigations and

prosecutions can become a stage for the performance of state sanctioned

violence, further extending institutional racism, sexism, and classism.

Traditional liberal approaches to sex trafficking prosecutions- namely

intersectional indifference or the absence of race, class, and gender

salience- become breeding grounds for implicit bias because they allow

what goes unregulated in the "subconscious" to run rampant. As a

corrective, intersectionality and feminist discourses can be strategically

deployed to reconceptualize sex trafficking in order to maximize litigation

strategies, particularly the use of sex trafficking expert (STE) witnesses.

Comprehensive use of STEs can mitigate the adjudicative process'

complicity in and ratification of sexualized violence through operations

of law.

Document Type

Article

Publication Date

2019

1-23-2023

Notes/Citation Information

Blanche Bong Cook, Stop Traffic: Using Expert Witnesses to Disrupt Intersectional Vulnerability in Sex Trafficking Prosecutions, 24 Berkeley J. Crim. L. 147 (2019).

Included in

Criminal Law Commons

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