On March 21st, Senate Republicans and Democrats joined together to overwhelmingly pass the Stop Enabling Sex Traffickers Act (SESTA); the House had earlier passed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA). All 18 female Senators – including Elizabeth Warren (D-MA), Susan Collins (R-ME), Dianne Feinstein (D-CA) and Kirsten Gillibrand (D-NY) — supported SESTA as did Bernie Sanders (I-VT) and Chuck Schumer (D-NY). In a vote of97-2, only Senators — Ron Wyden (D-OR) and Rand Paul (R-KY) — opposed the bill. On April 11th, Pres. Trump signed the Act into law.
The Act’s principle purpose is to revise the Communication Decency Act (DCA), specifically Section 230 that protected website operators from liability for user-generated content. The DCA was adopted in 1996 as a revision of the original Federal Communication Act (1934) and the latest revision ended Section 230 site-owner’s protection from civil and criminal charges for sex trafficking or “promoting or facilitating prostitution.”
The House and Senate bills were promoted in response to a 2017 California court ruling, Doe v Backpage, that found that the Section 230 protected Backpage against criminal prosecution under the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008. The law applies to anyone who “knowingly benefits, financially or by receiving anything of value from” human trafficking or prostitution. The ruling radically extended immunity to websites hosting third-party content. One of those who long opposed Section 230 was Sen. Kamala Harris (D-CA).
Kamala is a celebrated Hillary liberal and establishment feminist who championed the SESTA legislation. “Victims of sex trafficking should be protected and have the ability to seek justice. That’s why, from my earliest days as a prosecutor, I’ve led the fight against Backpage and other sex trafficking platforms,” she proclaimed. Adding, “And I am proud to support the Stop Enabling Sex Traffickers Act, which will make it possible for victims and state prosecutors to hold online sex traffickers accountable.”
Her vote caped a decades-long campaign against sex workers. Before winning a Senate seat in 2017, she served as the state’s attorney general from 2011 to 2017 and was San Francisco’s district attorney from 2004 to 2011. As a prosecutor, she specialized in child sexual-assault cases.
From the earliest days of her career, she strongly supported tough law-enforcement legislation. In 2004, she joined then-Governor Arnold Schwarzenegger and others in opposing efforts to end the state’s draconian three-strikes law.
However, her toughest stands were targeted at the criminal prosecutions of prostitutes and other sex offenders. In 2006, she supported Proposition 83, a California version of a Florida law known as “Jessica’s Law,” that prohibited convicted sex offenders from living within 2,000 feet of parks and schools.
In 2008, Harris led a campaign to defeat Proposition K, a local San Francisco measure that would prohibit local authorities from investigating, arresting or prosecuting anyone for selling sex. While the proposition was endorsed by the local Democratic Party, then-mayor Gavin Newsom and Harris, among others, opposed it. She insisted that prostitution was not a victimless crime. “The crime of prostitution does not exist by itself,” Harris said. “Along with it come pimps, johns and other crimes that really impact the safety of neighborhoods.” Waving the anti-trafficking flag, she claimed the initiative would limit police efforts to stop the exploitation of juvenile sex workers.
In 2009, she backed then-Attorney General Jerry Brown’s support for the use of familial DNA searches to identify relatives of a possible criminal. Investigators used DNA samples and other genetic testing and analysis to confirm a possible criminal match. In 2011, and as the state’s AG, Harris doubled DNA testing capacity. “California is on the cutting edge of this in many ways,” she claimed. “I think we are going to be a model for the country. I really do.” California was but one of only three states that employed the technique.
In 2010, Harris sponsored legislation that would barsex offenders from using social networking sites like Facebook and MySpace. According to Harris and others who backed the legislation, it would make the Internet safer for children from sexual predators. She argued during her first campaign for AG, “The carrot is don’t get on these sites, and the stick is we will prosecute you. … In my experience, these types of predators are a slimy group and they don’t want to go to jail, and what we’re telling them is that if you go online and start chatting with my 12-year-old niece, you’re going to jail.”
In 2014, Harris, working with ICE’s Homeland Security Investigations and other law-enforcement agencies, shut down Emeryville’s Acucare Oriental Massage and arresting four suspects for allegedly operating a sex trafficking ring. “Human trafficking is one of the world’s most profitable criminal enterprises, and it is having a devastating impact right here in our own backyard,” she declared. “Each year, thousands of women and children of all ages and backgrounds are forced into labor and prostitution. I thank our local, state and federal partners for fighting this serious threat and bringing these perpetrators to justice.”
In 2013, the California Department of Justice began investigating Backpage. Numerous reports in the media and by the National Center for Missing and Exploited Children (NCMEC) claimed that the publication facilitated exploitation of children for purpose of commercial sex. The investigation was fueled in part by a report by the legal scholar Jacqueline Hackler, citing a footnote in a study by Ryan Dalton, that claimed “sex traffickers realized more profits in 2010 than the combined profits of Wal-Mart and Exxon Mobil, the top two Fortune 500 companies that year.” (The claim could not be substantiated by other sources.)
In March 2015, the Erotic Service Providers Legal, Education and Research Project (ESPLERP), a San Francisco advocacy organization for sex workers, initiated a suit challenging California’s Penal Code Section 647(b) as unconstitutional. The law makes it illegal to engage in sex work, to solicit a prostitute and/or to agree to engage in prostitution. To be convicted, the defendant had 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. Harris was one of the defendants.
The suit grew out of the failed 2008 state initiative, Proposition K, that sought to decriminalize prostitution in San Francisco. Maxine Doogan, formally head of ESPU and now of 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.” The challenge was dismissed by Ninth Circuit of Court of Appeals.
Following the three-year state investigation into Backstage, Harris initiated a formal prosecution of the online publication. However, on December 9, 2016, a Sacramento (CA) Superior Court Judge, Michael Bowman, rejected the claim. He noted that online publishers like Backpage couldn’t be held criminally liable for the speech or actions of the third parties using their site, even if they were pimps or human traffickers. “Congress has spoken on this matter and it is for Congress, not this Court, to revisit.” Nevertheless, on December 29th, Harris refiled criminal charges against Backpage.
Bowman’s decision, along with others, set the stage for the adoption of SESTA.
Sen. Harris’ opposition to the conditions faced by sex workers is representative of attitudes held by many establishment feminists. They see prostitutes as criminals. In her opposition to the 2008 Proposition K, she argued, “To suggest that this is somehow an issue that only involves consensual adults, that’s just not true. 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.”
At the core of her opposition to changes in the laws relating to the decriminalize sex worker is the collapsing to two complementary, but distinct, phenomenon – prostitution and trafficking. For Harris, opposition to Proposition K as well as other efforts to restricts sex workers is grounded on the assumption that all sex work is a form of sex trafficking.
As Zoé Samudzi points out,“… Harris, like many others, claimed to support sex workers while actively making their lives more difficult: her prosecutorial logic deliberately conflated voluntary sex work and sex trafficking in a way that was indistinguishable from the rhetorics of sex work abolitionists and sex work exclusionary feminists (SWERFs).”
Gloria Steinem goes further than Harris, argues that prostitution is a form of “commercial rape.” She insists, “prostitution involves body invasion and so it is not like any other work. So how can you call it sex work? Prostitution is the only word you should use.”
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. 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.”
Julie Bindel, writing in The Guardian, identifies herself as an “abolitionist” regarding prostitution, and considers prostitution a form of sex slavery. She argues that “prostitution is inherently abusive, and a cause and a consequence of women’s inequality. Abolitionists … regard prostitution as a form of violence in a neoliberal world in which human flesh has come to be viewed as a commodity, like a burger.”
Ellen Whelan, in a rejoinder to Bindel in Spike, insists: “The argument for decriminalising prostitution, which Bindel pooh-poohs, would help to preserve women’s freedom – less against pimps than against the police, against the state.” She then adds:
But even worse than living in a society where desperate women sometimes sell sex, would be living in a society where it is casually asserted that some women cannot make rational choices and thus their bodily autonomy must be controlled by the state. The law already controls women’s bodies too much, such as by restricting abortion in certain circumstances. This means women’s bodies, unlike men’s, are not always their own. That is a scandal because it weakens women’s individual sovereignty, as would more laws making it harder for women to choose – yes, choose, like adults – to use their bodies to make money.
However, as a telling aside, Bindel acknowledges the Achilles-heel of her argument and that of many establishment and conservative feminists: “There is no way to make it [prostitution] safe, and it should be possible to eradicate it.” While endlessly detailing the evils of prostitution and denouncing efforts to decriminalize (and regulate) it, she sadly offers no suggestions as to how to end the “oldest profession.” One can only wonder if the oldest methods employed to police and suppress prostitution will be invoked – shaming, jailing, branding and hanging.
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 have 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 children can reclaim their young lives. Some have raised concerns that safe-harbor laws have serious unintended consequences.
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.
In the face of these developments, it time for establishment feminists – and Sen. Harris in particular – to rethink their absolutist condemnation of the situation faced by sex workers.