An Essay on Banalization of Slavery, Devaluation of Sex-Workers' Labor and Deprivation of Victims of Trafficking

Abstract

The problem of sex trafficking, while stirring much academic interest, has not triggered almost any analysis from a private law perspective. This essay begins to fill-in this gap, by paying attention to victims' claims against traffickers in unjust enrichment. First I present an analytical framework to the litigation of private-law responses against traffickers while distinguishing between loss- and gain-based claims. Second, I argue that gain-based claims should take the form of unjust enrichment cause of action, rather than claims in labor (or contract) law. Channeling victims' claims to labor courts is undesirable for conceptual, expressive and practical reasons. A labor response overlooks lack of consent, banalizes trafficking as a labor dispute (rather than viewing it as slavery), short-changes victims with respect to the size of the awards, and burdens them with the need to file multiple law-suits. It is lacking in terms of deterrence, and in terms of corrective, distributive and retributive justice. I explain how labor law's practical deficiency derives from its conceptual inadequacy to deal with trafficking, and that applying protective labor law to victims' claims does not solve the conceptual problem, and might worsen the practical problem. Therefore I criticize the tendency of Israeli lower courts to channel gain-based claims to labor courts and to view such claims as claims for wages. Alongside this I argue, that even within a labor framework the labor court awarded victims much less than it should have. Third, I examine the possibility to ground the gain-based claims (enslaving the victim and selling her) in conversion. After explaining the practical limitation of such a claim, I present a counter-intuitive claim (which will be developed further in future work) that the conceptualization of the victim as property might be desirable. The relationship between the practical and symbolic effects of labor, conversion and unjust enrichment claims is discussed. Fourth, I conceptualize the victim's unjust enrichment claim. I distinguish between the wrong involved in forcing the victim to provide sex services and that involved in taking the fruits of the enslavement. Accordingly I distinguish between two subtraction claims (duress and appropriation) and the principle of no profiting from one's serious wrongdoing. I flash out the major doctrinal ramifications from an unjust enrichment claim: that inalienability and illegality claims should not bar victim's recovery, that victims have a right to all proceeds made from their enslavement--so no deduction should be allowed to reflect traffickers' expenses--and that the burden should shift to defendants to disprove their enrichment. Fifth, I defend the view that traffickers' liability should be joint and several with respect to both loss- and gain-based claims. At the very least, traffickers who sold the victim should be liable with the buyers to compensation and restitution. Sixth, I argue that the victim's loss- and gain-based remedies should be cumulative and not alternative, based on both corrective justice and numerous policy considerations. Such novel claim has potential ramifications to other instances in which a breach of duty caused both loss to the plaintiff and gain to the defendant. Seventh, I sketch required reforms with respect to awarding damages, and improving victims' access to justice and recoverability of awards. Finally, I note on the question whether the analysis is applicable to other victims of trafficking and to non-forced sex workers.