DNA Database of Men Who Pay for Sex? The Strange Push to Make Cops Collect DNA from Suspected Johns
For the last six years, police across the United States have been empowered by federal and state law to collect DNA from the people they arrest in order to build a government DNA database. The database includes those who have yet to face trial as well as people who are later found innocent. Now a group of researchers, law enforcement and conservative campaigners want to exploit people's concerns about being included in such a database in order to scare people out of involvement in the sex trade. By threatening people with the possibility of being marked for life in a government database, these well-funded campaigners -- with allies in law enforcement, including the Department of Justice -- are using a questionably legal policing practice, a combination of "scared-straight" strategies that became a signature of the war on drugs and the extension of the surveillance state propelled by the war on terror.
DNA databases have the power to extend government surveillance to the cellular level. In 2005, a provision added to the re-authorization of the Violence Against Women Act permitted the collection and indefinite retention of DNA from, as the Center for Constitutional Rights understood at the time, "anyone arrested for any crime whether or not they are convicted, any non-U.S. citizen detained or stopped by federal authorities for any reason, and everyone in federal prison.”
In the intervening years, there have been several challenges to pre-conviction DNA collection and retention, with some courts divided as to whether or not DNA collection is a violation of the Fourth Amendment protections against unreasonable search and seizure.
Despite the questionable constitutionality of pre-conviction DNA collection, an organization called Demand Abolition has commissioned a study proposing that men who buy sex should be added to government DNA databases. Demand Abolition, which is engaged in a national campaign to increase arrests and criminal penalties for prostitution, claims these "crimes justify mandatory DNA testing," in order to serve as "a deterrent to buying sex, as most people who commit crimes do not want their DNA samples taken." Demand Abolition explicitly recognizes and exploits the consequences of being added to a government DNA database for people arrested merely under suspicion of committing misdemeanors, and who have not yet been tried or convicted.
In fact, many people arrested for buying sex never go to trial; instead, they are routed to a growing number of scared-straight programs, sometimes known as "John's schools," offered by law enforcement. People arrested for buying sex are also disproportionately drawn from low-income communities, communities of color and immigrant communities. In San Francisco, city public defender Jeff Adachi says that over 60 percent of people arrested for "loitering with intent to commit prostitution" are Latino. Some were arrested for not walking away from a decoy cop fast enough, which officers took to mean "intent" to buy sex.
Such street and Internet stings with decoy cops posing as sex workers have been on the rise in the United States with the spread of the scared-straight programs. The stings, like one staged in New York earlier this month, arrest people suspected of selling sex, as well. Despite concerns that the scared-straight programs are creating an incentive for cops to step up policing in struggling communities in order to collect fines from the people sent to the programs, they've become part of policing practice in dozens of cities. They are also part of a larger national strategy to seek greater punishment of people involved in the sex trade, advanced by organizations like the Hunt Alternatives Fund and its Demand Abolition program. When the Department of Justice claimed anti-prostitution scared-straight programs were effective, it cited a study conducted by the same researchers Demand Abolition has now commissioned to develop its national strategy. The DoJ also cited evidence from the anti-prostitution researchers Demand Abolition commissioned for a study promoting DNA collection as a next-level deterrent.
Outside the Law
Constitutional considerations are apparently beyond the scope of organizations like Demand Abolition, which advocates for extra-legal means to, as it claims, abolish the sex trade, but which, in practice, threaten and jail people involved in the sex trade. In 2010, Demand Abolition gathered over 100 members of law enforcement, faith-based organizations, the military, as well as Luis deBaca, the State Department's Ambassador-at-Large to Combat Trafficking in Persons and members of the Department of Justice and FBI, to develop a national strategy to abolish commercial sex. In addition to increasing the number of people arrested for soliciting sex for pay, Demand Abolition also advocates for a range of programs that use not the legal system but public shame against people who pay for sex: placing their mugshots on billboards and Web sites, or seizing their cars and property -- before trial or conviction. DNA collection may be an extension of these tactics.
But is it legal? The Electronic Frontier Foundation (EFF) is among those who have argued that the Fourth Amendment applies to DNA. EFF attorney Hanni M. Fakhoury explained that pre-conviction DNA collection runs the risk of reversing our legal standards of presuming innocence.
“Courts always say someone is innocent until proven guilty, and that up until that point, the law treats them as an individual. This practice requires that innocent individuals provide DNA samples without search warrants or any individualized suspicion -- any reason to believe collection of DNA will lead to further evidence of a crime -- just because the government says, we want it because we want it.”
Though there may already exist a provision under current law for the kind of database anti-prostitution activists propose for men who buy sex, the constitutionality of pre-conviction DNA collection is still up for debate. Said Fakhoury, “We're seeing a bit more of an outcry against collecting DNA from someone merely arrested under suspicion of committing a crime.”
Under California law, for example, a person arrested for a misdemeanor can have his DNA collected before his trial. The Ninth Circuit Court of Appeals has upheld a California judge's decision that pre-conviction DNA collection from a defendant was lawful, but, as Fakhoury described the decision, “it was a very divided opinion, and the entire Ninth Circuit then decided to re-hear the case.” Before they could, the defendant pled guilty. There's currently one case of pre-conviction DNA collection on its way to the Supreme Court, which has yet to decide if it will hear the case this year.
Civil liberties and racial justice advocates have also argued against the use of DNA databases in law enforcement, citing the disparate arrests and convictions of people of color. A 2008 report for the Council for Responsible Genetics termed the practice “building Jim Crow's database." Just as people of color are disproportionately represented in arrests, so would a DNA database overrepresent samples from people of color. In an editorial for the New York Times this week, Manhattan District Attorney Cy Vance alluded to the issue of racial profiling in law enforcement, claiming that “DNA is truly color blind.” It's evident, however, that the policing required to collect the DNA overwhelmingly targets people of color.
Who Isn't Buying It
In its mission to eliminate all commercial sex, anti-prostitution campaigners like Demand Abolition have seized on an issue of inequity that sex workers have long identified. Women selling sex face far more severe criminal consequences than men who buy sex. So it could sound like gender equity to some ears when they claim that the solution is, even if laws against buying sex might not be enforced very often against men, to increase the consequences of arrest, to stoke a cultural and criminal atmosphere where no man would dare risk his reputation or livelihood over even one arrest.
If it sounds a bit Victorian, you're not wrong. Theirs is an understanding of prostitution that hasn't advanced much in the last century, including the casting of women from the “helping class” -- researchers, clinicians and philanthropists -- as those who have the scientific, legal and moral authority to shame men out of buying sex. The difference today is, for activists who want to cloak their evangelism for a world without prostitution in science, there's far more advanced science to draw from.
Defining men who buy sex as a special class is one way Demand Abolition attempts to make the case for enhanced policing. Yet there's a tension at the core of Demand Abolition's study and how researchers conceive of men's involvement in the sex trade. On the one hand, the study claims to destroy “the common myth that any man might buy sex (i.e., that a sex buyer is a random everyman, an anonymous male who deserves the common name, john).” At the same time, this is how the research team defined a “non-sex buyer”:
We defined non-sex buyers as men who have not purchased phone sex or the services of a sex worker, escort, massage sex worker, or prostitute, have not been to a strip club more than one time in the past year, have not purchased a lap dance, and have not used pornography more than one time in the past week.
In other words, the study's authors argue that buying sex is something only a specific subset of the male population does. Yet, in order to qualify for the study, non-sex buyers had to avoid some activities so common that nearly anyone who has been on the Internet twice in the past week may not pass as a “non-buyer.” These activities also encompass a much wider range of transactions than simply “buying sex.”
These two assertions -- that buying sex is something normal men don't do and is instead limited to people with criminal tendencies, yet very few men could be described as non-buyers -- also surface in some of the headlines that ran with the study. Newsweek called its report “The John Next Door,” emphasizing the same “everyman” myth the study claims to debunk, while the New York Times chose “Men Who Buy Sex Commit More Crimes, Study Finds," in a nod to the study's most unsubstantiated claims.
The claims that men who buy sex are more prone to criminal behavior than other men are what inform the call for a DNA database of men arrested for buying sex. In an interview this week with the Demand Abolition study's most vocal author, Melissa Farley (who has referred to sex workers as "house niggers" in testimony before the Rhode Island legislature), she doubled-down on the study's claims, stating that “[men who buy sex] are committing lots more crimes, including crimes associated with violence against women. The reasoning goes, if these are men who are more likely than the average men to commit crimes of violence against women, then let's find out what else they've been doing in terms of violence against women.”
Her own data shows that of those crimes, the most common is assault and battery, but the next most common are driving under the influence and marijuana possession. The number of men who reported that they committed one of these crimes is, even for the study's size, not quite “lots.” Six men of the 100 identified as sex buyers reported they had committed assault and battery, as compared to the two men of the 101 non-buyers. Four sex buyers had possessed marijuana, versus two non-buyers.
How can these be statistically significant numbers, as the study claims, when we don't yet know what percentage of the overall population buys sex? Likewise, when it comes to overall rates of crime among the men who buy sex, since buying sex is considered a misdemeanor, it shouldn't be surprising that more of the sex buyers had been charged with misdemeanors than the non-buyers.
Junk Data In, Junk Policy Out
Farley has also suggested the database might be a tool for researchers to establish what other crimes men who buy sex may have committed. When we spoke this week, she told me that “we should consider DNA sampling of these guys, as a way of finding out, have some of them been committing lots more crimes against women? It's something to explore. It's just a question of how to do it.”
“DNA databases are already troublesome and problematic,” said EFF attorney Fakhoury, “but the idea that we can create a pool of unwilling research participants -- I think that creates a whole other set of bioethics issues. Part of the reason why is that DNA is so different from fingerprints. Our DNA can reveal sexual orientation, or histories of diseases.”
However, the real purpose of the database, for Farley and the other supporters quoted at length in the Demand Abolition study, is to act as a deterrent. “We're coming up with ideas for how to deter sex buyers,”Farley explained to me, “deterrents for buying sex.” She's marshaled some support from within law enforcement, as well.
One of the DNA database supporters is Roger Young, a retired FBI special agent once tasked with investigating obscenity. “If it were known that DNA samples were obtained from all arrested johns,” Young told the authors of the study, “then it would assist in the prevention of prostitution and the very harmful effects prostitution causes with every aspect of society, morally, socially, economically -- and our national security.”
Even if the establishment of DNA database could improve the lives of people in the sex trade, that isn't the immediate goal, if it is a goal at all, of the Demand Abolition activists. Their focus, as has been the focus of nearly 150 years of anti-prostitution campaigns, is almost exclusively limited to tactics for scaring men out of buying sex. As they seek to define yet more people as criminals, they are also unconcerned with due process and the law itself.