Vara till salu. Utsatthet vid människohandel - individer, strukturer och diskurser

Abstract

The focus of this article is the criminal legal subject, traditionally presumed to be rational and autonomous. The object of the criminal legal process is to decide individual responsibility. Therefore, in relation to criminality explicitly based on certain structures, a conflict between the individual subject and these structural factors can occur. For example, the crime of human trafficking is constructed in relation to vulnerability based on structural conditions such as poverty and gender inequality. Explicit force or exploitation is however normally required to prove the crime of human trafficking in the actual criminal process. This is hard when the most obvious vulnerability in this case consists of over all structures. Drawing on Iris Marion Young’s theory, according to which gender is seen as a series, I suggest to look at the legal subject as contextual. This subjectivity relates individuality and agency to structural and discursive aspects of power. Thus it is possible to make gender, class and other collective-based questions visible without essentializing individuality or agency. In the article the contextual legal subject is presented and used as a starting point for an analysis of official documents all related to the crime of human trafficking. My main conclusion is that the analysed documents all are highlighting structural and discursive aspects of power in relation to the vulnerability of trafficking. This has however not been followed up, neither in legislation nor in practice. An explicit contextualisation of legal subjectivity would help these aspects come out clearer, as well in legislation as in practice.