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It’s Time to Decriminalize Sex Work

Photograph by Nathaniel St. Clair

Two New York City Democratic Socialist were overwhelmingly victorious in the November 6th elections – Alexandria Ocasio-Cortez for the U.S. House for the 14th District (Bronx-Queens) and Julia Salazar’s for 18th District (Brooklyn) of the New York State Senate.

Going mostly unreported, Salazar called for the decriminalization of sex work. “Sex workers are workers and they deserve to be treated with dignity, including protections and decent working conditions, rather than the abuse and criminalization that they currently face,” Salazar said.  She added, “I’m dedicated to defending workers’ rights, reforming our criminal justice system and ending exploitation, and we know that criminalization puts everyone in sex work at risk rather than protecting them.”

Another Brooklyn candidate, Suraj Patel, lost to 13-term incumbent Carolyn Maloney in the recent Congressional primary, but he met with members of GLITS, an organization serving transgender sex workers.  “To me, this issue [of sex work] is wrapped up in the whole discussion of how prior generations of politicians in both parties—who need to go—really have only one tool in their tool kit when it comes to criminal justice, and that’s a hammer,” he said.  And added, “They can’t think outside the box about prevention and building healthier communities that have more economic opportunities for people. It’s always about criminalization.”

We live in an era when gun ownership is a Constitutional-guaranteed right; when more and more states decriminalized the medical use of marijuana and its recreational use; and when the Supreme Court ruled sports gambling legal.  It’s a period when the commercial sex industry – of sex toys, porn, sex-enhancement drugs and more — has been mainstreamed into a multi-billion-dollar operation, an accepted part of an American’s personal, private life.  So, why is sex work still illegal?

***

Donald Trump’s presidency may mark a new phase in how Americas come to terms with prostitution, long considered the oldest profession.  His decade-old adventures with sex workers Stephanie Clifford (aka Stormy Daniels), a former porn star, and Karen McDougal, the 1998 Playmate of the Year, are a titillating media distraction.  While much is made of his alleged illegal “hush” money payment to the two women, little comment surrounds his illicit, if not immoral, affairs, especially by his strongest supports among evangelical Christians.  Trump’s affaires with sex workers symbolize American’s contemporarysexual culture.

Prostitution is legal in just 22 brothels operating in seven rural counties in Nevada yet is estimated to be a $14.6 billion enterprise.  The Fondation Scelles estimated that in 2012 there were one million prostitutes operating across the country.

Federal data reveals that over the last two decades prostitution arrests nationally declined by nearly 60 percent.  A 2012 report by the Justice Department’s Bureau of Justice Statistics finds that in 1994, 98,000 people were arrested for engaging in commercial sex; in 2001, those arrested dropped to 80,054; and in 2016, it further declined to 38,306. (Police arrests of sex workers in New York parallel the federal pattern; between 1993 to 2016 there was a 77 percent decline is such busts, from 9,547 in ’93 to 2,194 in 2016.)  Not surprising, neither the Justice Department nor the FBI offers an explanation as to why the decline in arrests occurred.

In addition, a prostitution arrest is increasingly shifting from a felony to a misdemeanor offense. This change in prosecution reflects a fundamental shift in legal and social perceptions of the sex worker, from an “immoral” criminal to a “disorderly” citizen.  This shift in perception lessens both the social stigma and the personal costs in terms of fines, prison time and other incumbrances associated with being punished for being caught engaging in sexual commerce.

Concurrent to these developments, a May 2016 Marist poll found 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.  This finding reflects a profound shift in American values. 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.

***

All sex work is not the same. The religious right, along with many policymakers, seek to collapse the difference between a “trafficked” and a “consensual” sexual engagement.  They are fundamentally different sexual engagements and differentiating them can help address the plight experienced by many sex workers.

Trafficking is a form of sexual slavery, a crime, involving underage youths (mostly females).  Prostitution is a “consensual” commercial relation between a “seller” (often a female sex worker) and a “buyer” (most often a male customer); a business agent, be it a pimp or an escort service, often mediates the exchange.

Today’s effort to decriminalize prostitution builds on Rhode Island’s six-year (2003-2009) experiment.  While flawed in many ways, it saw a significant decline in rapes and sexually transmitted diseases (STDs).

In 2017, New York State’s former chief judge, Jonathan Lippman, headed a special commission, the Independent Commission on New York City 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.

Lippman added, “They [sex workers] 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.”  The proposed reclassification of sex work was envisioned as contributing to the closing of Rikers Island, the city’s vast prison colony in the East River.

Last 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.  Among its provisions are: the repeal of 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.

Sex-worker advocacy groups like COYOTE (Call Off Your Old, Tired Ethics) as well as the World Health Organizations have called to decriminalize non-trafficked – i.e., “consensual” – prostitution.  Earlier in 2018, San Francisco’s Erotic Service Providers Legal Education and Research Project (ESPLERP) lost a case, ESPLERP v Gascon, challenging California’s Penal Code Section 647(b) as unconstitutional; the law makes it illegal to engage in prostitution, to solicit a prostitute and/or to agree to engage in prostitution.

Adding to these calls, a 2015 Pew report notes that “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.”  In addition, there is a nation-wide movement to implement “safe harbors” laws.  Under these provisions, 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.

As of 2016, 28 states have passed safe harbor legislations, including New York, Minnesota, Connecticut, Tennessee and Texas; the District of Columbia has also done so. This support is critical so that these young people can reclaim their lives.  Nevertheless, critics have raised concerns that safe-harbor laws have serious unintended consequences.

So, it’s time to decriminalize sex work.

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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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