A Dangerous Campaign Against Sex Trafficking Has Bipartisan Support
Senator Mark Kirk of Illinois has a reputation as one of the most moderate Republicans in Congress. And a big part of that reputation for moderation has been earned through his enthusiastic leadership of bipartisan efforts to target and criminalize sex workers.
Kirk’s main legislative achievement in this area (and arguably his main legislative achievement during his entire first term of Congress) is the passage of the SAVE Act (Stop Advertising Victims of Exploitation). The act, cosponsored by California Democrat Dianne Feinstein, is meant to target platforms, like Backpage.com, that advertise sexual services. SAVE makes it a crime for Backpage and other venues to “knowingly advertise a commercial sex act with a minor,” according to Kirk’s website.
That sounds unobjectionable—everyone can agree on protecting children, right? Unfortunately, in practice, the law puts consensual sex workers and trafficking victims of every age at greater risk. The law requires those placing ads for sexual services to have identification and a telephone number and prohibits payment with cash or pre-paid cards. As SWOP (Sex Workers Outreach Project) Chicago points out, this makes it far more difficult for sex workers to place ads. That in turn makes it more likely that they will have to turn to third-parties to place ads for them—a situation which encourages exploitation. Many sex workers may be forced offline altogether and onto the streets, where, again, they are more vulnerable to traffickers and third parties.
Sex workers themselves have said that SAVE makes them more vulnerable to exploitation—but that argument has barely registered at the national level, either with Democrats or Republicans. Leftist feminists, conservative religious groups, and moderate pragmatists are all united in seeing not just trafficking, but sex work in general as illegitimate, exploitive, and dangerous.
As a result, legislation initiatives which criminalize aspects of sex work in the name of fighting trafficking enjoy broad bipartisan support in Congress. Democrats these days are expected to at least pay lip service to the evils of mass incarceration and the virtues of criminal justice reform. But when it comes to sex trafficking, everyone embraces more policing—even though most research shows that police routinely harass, abuse, and even rape youth involved in trading sex.
“. . . The feminism of the rescue industry is a carceral feminism, one that strengthens the state, one that ‘rescues’ with arrests. The new raft of anti sex work laws and police tactics attack the screening tools of sex workers, like our advertisements online and identity verification tools, making all of us less safe under the aegis of stopping sex trafficking. The Stop Advertising Victims of Exploitation (SAVE) Act in the United States and the accompanying series of high-profile raids against internet-based sex workers, Canada’s Bill C-36, which restricts advertising and criminalises clients, along with the adoption of laws criminalising clients across Europe mean that sex workers are thrown into jail more often, and our work is more difficult, and increasingly dangerous.”
“The war on trafficking is the new war on drugs,” Katherine Koster, communications director for SWOP USA, told me in a telephone conversation.
“At a time when a Republican majority Senate and Congress is blocking almost all legislation, this is one of the few issues that Democrats in the House or in Congress can create a viable bill on. So this is this big bipartisan issue where you can get a major piece of legislation passed. That is really politically advantageous to a group of people who can’t pass anything.”
It’s particularly advantageous for Mark Kirk, a Republican Senator in a Democratic-leaning state, who faces a powerful challenger in Congressperson Tammy Duckworth. Kirk is considered perhaps the most vulnerable Republican Senator in 2016, and his reelection depends on presenting himself as a moderate to Democratic crossover voters. That’s the context in which he’s collaborated with Democratic Cook County Sheriff Tom Dart in trying to prevent Visa and MasterCard from doing business with Backpage.com.
A court ruled Dart’s campaign unconstitutional as he was basically trying to use his official position to extra-legally intimidate businesses, which is a pretty clear-cut violation of the first amendment. But violation or not, it was good PR for Kirk.
While anti-trafficking via policing enjoys bipartisan enthusiasm, more effective and less harmful measures do not. Last year Senator Patrick Leahy (VT) tried to reauthorize the Runaway and Homeless Youth Act, which would provide for street outreach programs and housing for homeless children. He also tried to pass a law preventing organizations that received federal money from discriminating against LGBT youth. These laws are vital, since homelessness and the need for shelter are among the most important reasons that youth are forced to trade sex, according to Alexandra Lutnick’s Domestic Minor Sex Trafficking. LGBT protections are also important, since as many as 40% of homeless youth are LGBT and surveys indicate that LGBT youth are more likely than heterosexual youth to trade sex.
So Leahy’s amendments would almost certainly have helped to reduce sex trafficking, and provided alternatives for youth trading sex. But they were defeated. Conservative lawmakers did not want to pass laws protecting LGBT youth—criminalization and punitive measures are embraced—social services, not so much.
Similarly, Koster told me, there has been little support for providing immunity for trafficked victims. Immunity would allow victims to safely seek police protection. Without it, victims often legitimately fear that they will be arrested on prostitution or other offenses if they come forward—or that police will use the threat of arrest to harass or abuse them. A federal law cutting federal funding for anti-trafficking to states without strong immunity provisions would be a good step forward, Koster said. But there is little Congressional interest.
It’s possible to imagine a situation in which bipartisan incentives could shift. Activist and researcher Tara Burns told me that in Alaska, legislators from both parties are interested in trying new approaches to human trafficking. “Legislators have been told that prostitution stings will net child victims of sex trafficking,” said Burns. “Everyone, from the police to the legislators, can see that has been a failed approach that has netted no child sex traffickers here in Alaska. Allowing people in the sex trade to report serious crimes without penalty is just common sense.” Burns is currently researching the effect of anti-trafficking laws across the country in order to try to promote better-informed policy.
For the moment, though, criminalization of sex work as a response to trafficking is the one and only bipartisan consensus on a national level. Stigma against sex workers unites Democrats and Republicans. And that means that Republicans like Mark Kirk can propose punitive measures against marginalized people and look like a reasonable moderate while doing so.