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Criminalizing Sex Work to Combat Trafficking: Rhode Island Considers the Wrong Solution to the Wrong Problem

The State of Rhode Island seems poised to take a significant step backwards on its legal treatment of both sex work and trafficking.

The State of Rhode Island seems poised to take a significant step backwards on its legal treatment of both sex work and trafficking when legislators resume their session this fall. Local advocates expect that lawmakers will reconcile two bills, House Bill 5044A and Senate Bill 0986A, both of which would institute criminal penalties for consensual commercial sexual exchanges which take place indoors. Failing that, the Mayor of Providence, David N. Cicilline, wants to issue an Executive Order that would do the same when the City Council reconvenes in September.

In the early 1980s, Rhode Island criminalized virtually all sex outside of marriage. That changed when a lawsuit was filed by the sex workers’ rights organization COYOTE (Call Off Your Old Tired Ethics), on the grounds that the statute was overbroad and discriminatorily enforced against women engaged in sex work. In their haste to amend the statute to bring it into compliance with the federal Constitution, Rhode Island legislators inadvertently cut out provisions specifically criminalizing solicitation, leaving only the language criminalizing street-based prostitution. No one noticed for about 20 years, while arrests, prosecutions, and convictions for indoor prostitution continued.

A few years ago an enterprising defense attorney started successfully moving to dismiss charges relating to consensual commercial sexual exchanges taking place indoors, on the grounds that such conduct was not, in fact, illegal under the Rhode Island law. Since then, there have been increasingly vocal calls to recriminalize indoor prostitution.  Up until recently, such efforts were largely unsuccessful. This year, the issue gained traction following an assault of a Rhode Island woman by Phillip Markoff, dubbed the “Craigslist killer.” Before breaking for the summer, the state House and Senate passed two different bills, both of which would criminalize all forms of prostitution, regardless of where it takes place.

Advocates for the legislation claimed that it is absolutely necessary to criminalize all forms of prostitution in order to fight trafficking in persons.  

“Criminalization of those you seek to help is not the answer,” responded Dr. Penelope Saunders of the Best Practices Policy Project in a letter opposing the legislation.  The letter went on to state:

 In our experience, the criminalization of prostitution forces women, men and transgender [people] who engage in commercial sex to the margins, away from service providers and advocates who could help them. The Move Along report released in 2008 [by D.C. based organization Different Avenues] found that laws against prostitution prevented these communities from accessing assistance from the police even in extreme situations of rape and physical violence. Unfortunately when sex workers went to the police to receive help, the pervasive stigma and discrimination bolstered by laws prohibiting prostitution meant that police officers often dismissed these calls for help, failed to respond appropriately or at times arrested those in need of assistance.

The Sex Workers Project, a New York City based organization which has provided legal and social services to scores of trafficking victims over the past seven years, concurred in a memorandum submitted to the Rhode Island Senate:

The reality is that such a measure is likely to cause severe harm to victims of human trafficking by subjecting them to repeated arrest, incarceration, and retraumatization, without increasing the likelihood of locating, identifying, or assisting trafficking victims.

Proponents of the legislation repeatedly claimed that, in the absence of a state law criminalizing indoor prostitution in Rhode Island, law enforcement’s hands are tied, and they are denied the tools they need to fight trafficking or protect minors in prostitution. In reality, existing federal and state anti-trafficking laws, as well as existing criminal provisions against kidnapping, extortion, assault, rape, and indentured servitude, give state and federal law enforcement and prosecutors a panoply of tools to pursue those who harm people who are engaged in prostitution without collateral damage to victims of trafficking.

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