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Is It Finally Time to Decriminalize Prostitution?

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Photo by Alejandro Forero Cuervo | CC BY 2.0

December 17th was the International Day to End Violence Against Sex Workers.  Annie Sprinkle, the sexologist, educator and former prostitute, launched the campaign in 2003 in the wake of a series of killings of women, many young female runaways and sex workers, in King County, WA.  The killer, Gary Ridgway, dubbed the Green River Killer, was convicted of murdering at least 49 women, but likely killed as many as 75-80 women from 1982 through 1998.

Ridgway was caught in 2001 when matched in a DNA test and was convicted; he received multiple life sentences.  He admitted targeting women “because they were easy to pick up without being noticed.  I knew they would not be reported missing right away and might never be reported missing.  I thought I could kill as many of them as I wanted without getting caught.”

Since the nation was first settled, prostitution has been viewed as an immoral, if not an illegal, commercial exchange between mostly male customers and female sex workers.  In four centuries, this relationship has not changed.  Women (mostly) still ply their demeaning trade to (mostly) male clients.  Weirder still, the same shame applies to the commercial sex workers today as it did when the nation was first settled.

Sex workers are busted for selling their sexual labor power, the ability to erotically please a client.  In 2014, 47,600 people were arrested nationally for engaging in what the FBI identifies as “prostitution/commercial sex” and 9,137 people were busted in California.  While commercial sex has long operated in the shadows, a wink-and-a-nod sin, a series of recent developments might upend this long-cherished social hypocrisy.

Earlier this year, the House of Representatives passed the questionably-named “Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act” (H.R.2200), a reauthorization of exist federal law to “combat” trafficking.  It allocates $520 million over four years to identify and aid victims of trafficking and to prevent it from occurring.  In the House, it received bipartisan support, with no dissents; it has yet been taken up by the Senate.

Over the last decade, nearly every state has either passed or toughened existing laws concerning what is labelled “human trafficking” for labor (e.g., house cleaning, farm labor and sweatshop manufacturing) and sex, often involving underage juveniles, mostly girls.  Among the venues in which sex trafficking ostensibly flourishes are: “gentlemen’s” or strip clubs, brothels, street walkers and through online advertisement.

Sadly, these actions are part of an effort to collapse the differences between commercial sex and sex trafficking.  Trafficking is a form of sexual slavery, a “non-consensual,” involuntary or coerced act; prostitution is a “consensual” or voluntary practice involving sexual intercourse or other practices (e.g., phone sex, posing) engaged in by women, men and transgender persons who offer sexual services in exchange for money or other forms of compensation.

Much media and political attention has been focused on the exploitation of underage girls (and some boys) as victims of sex trafficking.  Such sex slavery is not uncommon, often involving undocumented girls.  However, a 2012 report by Justice Department’s Bureau of Justice Statistics notes, “Two percent of prostitution and commercialized vice arrests in 2010 involved a juvenile, a proportion that has averaged between 1% and 2% since at least 1990.”

A series of recent legal, legislative and other actions might signal a shift with regards to the definition of commercial sexual engagements, especially concerning the meaning of “consensual” and “age-appropriate.”  Three efforts to decriminalize prostitution include: (i) a federal case, ESPLERP v Gascon; (ii) a Washington, DC, city-council bill; and (iii) a significant change in public attitudes toward prostitution.  They, and other efforts, may indicated the further humanization of America’s sexual culture and the criminal justice system.

***

On October 19, 2017, Louis Sirkin, a noted civil-liberties attorney, argued before judges of San Francisco’s Ninth Circuit of Court of Appeals that California’s Penal Code Section 647(b) is unconstitutional.  The law makes it illegal to engage in prostitution, to solicit a prostitute and/or to agree to engage in prostitution.  To be convicted, the defendant has to have engaged in sexual intercourse or committed a lewd act – e.g., touching the genitals, buttocks or breast of either the prostitute or the customer for the purpose of sexual arousal — in exchange for money or other compensation.

The law is being challenged by the Erotic Service Providers Legal, Education and Research Project (ESPLERP), a San Francisco advocacy organization for sex workers.  It argues that Section 647(b) violates Constitutionally-guaranteed freedoms of expression and association.  It claims the law is outdated because it deprives consenting adults of the right to engage in a consensual, private activity, thus depriving them of the right to a livelihood and access to due process.

The case was initially dismissed by a California state judge, but it’s now back in federal jurisdiction.  If the challenge is upheld, it could signal a major shift in the nation’s sexual culture and moral order.  It could also reflect an important advance in the growing “restorative justice” movement, not dissimilar to the rights to birth-control, abortion, same-sex marriage and non-broadcast pornography.

The case of ESPLERP v Gascon – the defendant is San Francisco’s current DA, George Gascon — grows out of a failed 2008 state initiative, Proposition K, that sought to decriminalize prostitution in San Francisco.  The initiative was promoted by the Erotic Service Providers Union (ESPU), a precursor to ESPLERP, and was opposed by then-mayor, Gavin Newsom, and former district attorney and now Senator, Kamala Harris.  Harris argued, “No matter how these girls and women are packaged for sale, the reality is that for many of them, their life experience is often wrought with abuse and exploitation.”  Waving the anti-trafficking flag, she claimed the initiative would limit police efforts to stop juvenile sex slavery.

The initial suit against #647(b) was filed in March 2015, arguing that the state’s prostitution law is unconstitutional, a violation of freedoms of expression and association.  It claimed the law is outdated because it deprives consenting adults with the right to engage in a consensual, private sexual activities.  Maxine Doogan, formally head of (ESPU) and now ESPLERP, warned, “The really negative social stigma that is put on people who are prostitutes or people who are viewed as prostitutes and our customers extends to other people that are sexual who are seen as outside the bounds of what is OK.”  A year later, a state judge dismissed the case; a year later, the local federal district court is now reconsidering it.

The defendants in the current suit are best understood as the social establishment, the old moralist order.  They includes DA Gascon and Sen. Harris as well as Alameda County DA Nancy O’Malley, Marin County DA Edward S. Berberian, Jr., and Sonoma County DA Jill Ravitch. One can only wonder how they could lose.

However, ESPLERP’s challenge is backed by Amnesty International, the World Health Organization, the Lancet, Human Rights Watch, and the UN Global Commission on HIV and the Law.  Amicus briefs have been submitted by more than 30 civil rights and LGBTQ organizations, including the ACLU, the First Amendment Lawyers Association, the Free Speech Coalition, Transgender Law Center and the Woodhull Freedom Foundation.

At the core of the ACLU’s brief is recognition that the Supreme Court ruled, in Lawrence v. Texas (2003), that “liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”

***

The case of ESPLERP v Gascon is, potentially, the most significant development in efforts around the country to decriminalize prostitution.  It might make its way to the Supreme Court and, if upheld, would — like Loving v. Virginia (1967), Roe v. Wade (1973), Lawrence v. Texas (2003) and U.S. v. Windsor (2013) — signal a change in American sexual culture, moral order.

In October, two D.C. Council members, David Grosso (I-At Large) and Robert C. White Jr. (D-At Large), introduced a bill, “Reducing Criminalization to Promote Public Safety and Health Amendment Act,” that would decriminalize prostitution.  “I do not think the criminalization of sex workers has worked for the District of Columbia,” Grosso stated. “Arresting our way out of the problem is not the solution. The approach should be a harm reduction and human rights approach.”

The bill seeks to reverse policies that have been in place for decades.  These include: to repeal a 1935 bill that made it a crime for engaging in or soliciting prostitution; to abolish the district’s Anti-Prostitution Vehicle Impoundment Proceeds program and fund; to repeal prohibitions on procuring someone for prostitution, operating a house of prostitution, or operating a “place used for the purpose of lewdness, assignation, or prostitution”; and to repeal D.C.’s prohibition on “pandering” (i.e., placing, causing, inducing, enticing, procuring, or compelling someone somewhere “with the intent that such individual shall engage in prostitution”) because its covered by other laws.

Earlier in 2017, New York State’s former chief judge, Jonathan Lippman, headed a special commission on Criminal Justice and Incarceration Reform that advocated for reclassifying prostitution as a civil offense rather than a criminal one. “The modern thinking on this is that the defendants in prostitution cases, whether it’s around the world or around the corner, are victims,” he wrote.

He added, “They need help, those people, and the law enforcement have to get the real perpetrators of this, not the victims: the traffickers, whether it’s the pimp who is standing 10 blocks from here and doing this or whether it’s these big cartels who victimize somebody.”  One of the proposed outcomes of the reclassification would be the closing of Rikers Island, New York City’s prison colony in the East River.

A 2015 Pew report notes, “states have dramatically changed laws targeting the sex trade to distinguish between voluntary prostitution and the trafficking of women and girls who are forced or coerced into selling sex.”  This change is reflected in efforts to lessen the charges for sex workers arrested for prostitution from a felony to a misdemeanor and the establishment of “safe harbors.”

At the end of 2015, 34 states had passed safe harbor legislation, including New York, Minnesota, Connecticut, Tennessee and Texas.  Under such laws, youths arrested for sex trafficking are no longer prosecuted for a criminal offense, but placed in a victim-services program and can be provided with rehabilitative and protective services.  This support is critical so that these young people can reclaim their lives.

However, the most significant development regarding sex work is represented by the findings of a May 2016 Marist Poll.  It reported that nearly half (49%) of Americans felt that commercial sex between two consenting adults should be legal whereas just over two-fifths (44%) opposed it.  It broke down the findings as follows: “Men, 54%, and residents under 45 years old, 58%, are more likely than women, 44%, and older residents, 40%, to believe prostitution should be permissible under the law.”

In addition, six in ten respondents opposed criminal prosecution of those arrested for prostitution and more than half of respondents (53%) reported that decriminalizing prostitution would regulate the “professional,” thus minimizing risk to women sex workers.

***

Since the tumultuous 1960s, American sexual culture has profoundly changed.  Most revealing, over the last two decades prostitution arrests have declined by half at both the national and state (e.g., California) levels.  According to federal data, in 1994, 98,000 people were arrested for engaging in commercial sex; in 2004, those arrested dropped to 87,900; and in 2014, it had further declined to 47,600.  The same pattern is evident in California: in 1994, 18,035 people were busted; in 2004, arrests fell to 15,034; and in 2014, they declined to 9,157. (There was a 52% decline in national and 49% decline in California prostitution arrests.)

A 2012 report by the Justice Department’s Bureau of Justice Statistics notes, “From 1990 to 2010, the arrest rate for prostitution and commercialized vice was cut in half (down 55%), with substantial declines in both the male (down 62%) and female (down 50%) arrest rates.”  Most revealing, the report offers no explanation as to why this significant decline took place.

Prostitution, although legal in only a handful of rural Nevada areas, it is estimated to be a $14-$18 billion enterprise.  Conservative moralists and rightwing feminists rail against the immorality of prostitution, especially the sex trafficking of young women.  Their condemnations may be well-intentioned, but they all-too-often blame the victim for her moral failure.  They decry the consequences of commercial sex, but not the causes.  Most troubling, they refuse to acknowledge that in a capitalist society one must sell oneself — one’s labor power — in the proverbial marketplace to survive.  Without meaningful possibilities, too many people are left only with their sexual services to sell to survive.

If nothing else, the decriminalization of commercial sex could expose the hypocrisy inherent in the efforts to suppress – as oppose to regulate and to offer genuine alternatives – consensual and age-appropriate commercial sexual engagements.  The adjudication of the ESPLERP v Gascon case, the Washington, DC, bill and other efforts may lead to the decriminalization of commercial sex work as well as a further humanization of sexual culture and the criminal justice system.

***

Sex work is the most primordial form of labor exchange, the exchange of (female) physical and financial resources to fulfill (male) passion, pleasure and fantasy.  It is widely acknowledged to be as oldest profession, dating from the earliest days of human civilization.

Karl Marx, in vol.1 of Das Capital, notes, “by labour-power or capacity for labour is to be understood the aggregate of those mental and physical capabilities existing in a human being, which he exercises whenever he produces a use-value of any description.”   He then adds, “labour-power can appear upon the market as a commodity, only if, and so far as, its possessor, the individual whose labour-power it is, offers it for sale, or sells it, as a commodity.  In order that he may be able to do this, he must have it at his disposal, must be the untrammelled owner of his capacity for labour, i.e., of his person.”

There are five principle reasons to decriminalize prostitution.

+ Decriminalization protects sex workers.  The real victims of commercial sex industry are the women, girls and some young males who are forced (or “choose”) to work in the sex trade. These “workers” could secure labor rights, unemployment benefits, health care and life insurance.  More important, sex workers will be able to secure police protection to deal with threatening or violent situations.

+ Decriminalization will likely reduce sex trafficking and street prostitution.  Federal officials insist that sex trafficking has reached epidemic proportion, with between 100,000 and 300,000 people annually at risk.  The Department of Homeland Security (DHS) reports the average age for a girl sex worker at between 12-14 years and 11-13 years for boys.

+ Decriminalization could reduce rape & STDs among sex workers.  A 2014 report by the National Bureau of Economic Research (NBER) found that decriminalization of prostitution contributed to “a large decrease in rapes” and “a large reduction in gonorrhea incidence … for women and men.”

+ Decriminalization of prostitution will cut government expenditures and increase tax revenues.  It’s expensive to arrest, prosecute and imprison those busted for prostitution and provide unnecessary health care to sex workers; regulated commercial sex could be new revenue sources for hungry state and local governments.

+ Decriminalization of prostitution will finally end the great hypocrisy that has defined America since its founding — that people, mostly women, have for millennia sold their sexual labor power, rendered themselves commodities.

* * *

One of the most salacious — and bitterly contested — episodes in the ongoing saga about Donald Trump and Russia involves pre-candidate Trump’s participation in what has come to be identified as the “golden shower night.”

Christopher Steele, a former British intelligence agent who once served in Moscow, undertook a secret background report on candidate Trump. The Washington Post reported that the Clinton campaign and the Democratic National Committee [DNC] retained the Fusion GPS, a Washington, D.C., firm, to conduct the research.  The resulting “dossier” claims that Trump was in Moscow in 2013 for the Ms. Universe Contest and — for some private recreation — reserved the presidential suite of the Ritz-Carlton Hotel.  He reportedly employed two prostitutes for a night of sexual congress and the sex workers performed “a ‘golden showers’ [urination] show in front of him.”

Recently, at a House Intelligence Committee hearing, Keith Schiller, Trump’s longtime bodyguard, denied accusation that he had hired the prostitutes.  Nevertheless, one source claims Trump secured the presidential suite in order to deliberately “defile” the bed on which the Pres. Barack Obama and the first lady, Michelle Obama, had slept.

One can only wonder whether Trump’s belief in opportunistic capitalism extends to sex workers.  For decades, he used other-people’s money to enrich himself and fashion himself into a commercial “brand.”  His name adorns hotels and casinos, up-market condos and women’s apparel as well as a TV series; according to Nielsen data, he had an average of 10 million viewers per episode.

Trump knows the true value of labor power.  His alleged sex party – assuming Steele’s dossier is accurate – suggests not merely the erotic obsessions of a hyper-compulsive 1 percenter, but perhaps something more profound, something indicative of a shift in the nation’s moral order — the normalization of sex work.  Trump’s reputed party was revealing not because he met with hookers, but because he got off on a prurient indulgence, water-sports voyeurism.

History is unpredictable, often a surprise.  Who could have expected that a campaign against misogyny (i.e., male sexual abuse) would emerge during Trump’s first year in office.  Courageous testimonials by women once abused and aggressive – and long overdue – media reporting has dragged sexual abuse out from the shadows into the public spotlight, upsetting the political – and cultural – status quo.

The decriminalization of commercial sex might be the next sexual issue that challenges traditional moral and legal order.  It would empower sex workers who sell their services – some would say, themselves – freely as a commodity.  It would finally remove the social hypocrisy that denies that people, mostly women, have for millennia sold their sexual labor power.  It’s time to finally end this social fiction.

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David Rosen is the author of Sex, Sin & Subversion:  The Transformation of 1950s New York’s Forbidden into America’s New Normal (Skyhorse, 2015).  He can be reached at drosennyc@verizon.net; check out www.DavidRosenWrites.com.

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