The Compelling Case for Decriminalizing Sex Work

As soon as we stop treating sex workers like criminals, we can start using the law to protect them.

I have been interested in policies and laws around prostitution since I was 15 years old and a district attorney declined to press charges against my father for pimping me out because “juries don’t trust teen prostitutes.” The implication was that if I had been a different sort of victim—more pure—I would be more deserving of the state’s protection. Instead, the opinions of most officials I talked to were that I should just be grateful I wasn’t institutionalized—yet.

Right around the time of that conversation with the DA, my auntie told me that, at age 16, she was kidnapped by the serial killer Robert Hansen. She managed to escape and go to the police, but they made fun of her and threatened to arrest her for prostitution. It would be 15 more years before I would understand how many women had escaped from Robert Hansen and been turned away by the police while Hansen went on killing.

Since the state wouldn’t offer me any protection, the police advised me to leave the state. I took their advice, passed up a full scholarship, and moved to Texas to live with a pedophile when I was 16.

I thought things were probably better by the time I was raped a few years later and went to the police. After all, everyone thought sex workers were victims who should be saved, right? Besides, I was only a dancer. But the police made fun of my dress and threatened to arrest me. After DNA testing found my rapist, the district attorney declined to press charges because I was, again, the wrong kind of victim.

Things today aren’t much different. Just a couple years ago the attorney general here in Alaska explained publicly that prostitutes are really victims, not criminals. A couple months ago, I met with Alaska’s Commissioner of the Department of Public Safety, and he told me that he respects sex workers and wants to serve and protect us. But then just a few weeks ago, when I met with the chief and deputy chief of the Fairbanks Police Department and asked if a woman who was being threatened and extorted could make a report without being arrested for prostitution. They said no. Denied access to equal representation of the law’s protections, she left the state to escape instead.

In 2014, the United Nations Human Rights Committee warned the United States that it “remains concerned about…criminalization of victims on prostitution-related charges.” In March of this year, sex workers traveled from the United States to Geneva, Switzerland, to report to the United Nations Human Rights Council that serious human rights violations of sex workers were still happening in the United States and to urge them to take action.

Human rights have been the basis for recommendations to decriminalize every aspect of consensual adult sex work by Human Rights Watch, the World Health Organization, the Global Commission on HIV and the Law, the UN Special Rapporteur on the Right to Health, the United Nations Development Programme, UN Women, and UNAIDS. A new lawsuit to decriminalize prostitution in the state of California, however, is based on constitutional rights to sexual privacy, free speech, and due process.

“You have to [use] the dominant class’s words to the dominant class” in order to change the law, explained Maxine Doogan, president of the Erotic Service Providers Legal Education and Research Project (ESPLERP), which is bringing the lawsuit. In legal terms, the ability for a victim to report a crime to the police without harassment or threat of arrest probably falls under due process. The group decided on a lawsuit after Proposition K, which put prostitution on the ballot in California, failed in 2008.

A constitutional lawsuit brought by COYOTE (Call Off Your Old Tired Ethics) against the state of Rhode Island in 1980 was successful in decriminalizing prostitution there. Bella Robinson is a sex worker who originally moved to Rhode Island when she learned that the state had decriminalized prostitution. She says it was the first time she knew that she could call 911 if anyone assaulted her. During the period that prostitution was decriminalized in Rhode Island, Robinson says, there were no cases of sex trafficking. Not only that, but she says the infamous Craigslist killer, who had traveled up the east coast killing sex workers, was caught when he got to Rhode Island and the first woman he tried to victimize picked up the phone and called 911. More recently, Robinson has revived COYOTE, in response to the re-criminalization of prostitution in Rhode Island in 2009.

The new lawsuit, whose defendants are California’s attorney general and four district attorneys, is brought by ESPLERP on behalf of four defendants. Three are former prostitutes who would like to practice prostitution again in the northern district of California, and one is a man who experiences a disability and wishes to hire prostitutes there.

The plaintiffs say that California’s prostitution law has caused them "severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma," along with violating their constitutional rights to sexual privacy, free speech, and due process. Their only prayer for relief is an order preventing the state of California from violating their constitutional rights with the prostitution law.

A couple of years ago, I wondered how common experiences like mine with the police were. When they happened, they seemed like isolated incidences, but as I spoke with more people, I realized that similar stories were fairly common. For my graduate research, I consulted with 48 people with experience in Alaska’s sex trade to see how the current policies were affecting them. Overall, research participants reported high rates of discrimination in accessing services like emergency shelter, being turned away or threatened with arrest when trying to report a crime, and being sexually assaulted by police officers. 

Those who had been victims of abusive work conditions within the sex industry—meaning those whose involvement in sex work fell under the legal, though not necessarily self-identified, definition of having been trafficked—reported the highest rates of victimization by the justice system: when trying to report they had been the victim or witness of a crime, 80 percent of their reports were not taken, 60 percent were threatened with arrest, and 20 percent were actually arrested while trying to report a crime. Slightly over a quarter of all the research participants reported being sexually assaulted by a police officer, but of those who might be legally defined as sex trafficking victims, 60% reported being sexually assaulted by an officer. 

Criminalization does not just affect prostitutes’ dignity or ability to report crimes like sex trafficking and sexual assault by police. Here in Alaska, like many states, prostitution convictions carry with them the threat of property forfeiture, a threat that keeps many from purchasing homes or other things of value. In California and other states anyone who lives with a prostitute can be charged with sex trafficking. People prostitutes hire as drivers, schedulers, or security, as well as their friends who act as their “safe calls” – people they can relay their whereabouts and other information to ensure their safety – can all be charged with sex trafficking. Essentially, this means that if someone who works as a prostitute dares to have friends or family who care about their safety, or if they dare to increase their safety by sharing space with other sex workers or hiring a driver, they and everyone around them can be charged with multiple felonies.

Many of the research participants – including all of those who reported being assaulted by the police, which overlapped greatly with those who had been victims of abusive working conditions within the sex industry – named police violence the number one threat to the safety of people in Alaska’s sex trade. When asked what laws would protect them, they almost unanimously said that decriminalizing prostitution would give them the ability to report crimes and prevent them from being targeted by violent criminals who know that sex workers generally do not have access to the same police protection as other citizens.

Kamala D. Harris, the attorney general of California and defendant in the lawsuit, responded to ESPLERP’s lawsuit with a 206-page motion to dismiss on May 8. Harris made the argument that the state does have a compelling interest in criminalizing prostitution: to prevent sex trafficking, the state must arrest prostitutes because they are potential sex trafficking victims. Additionally, she said that the state does, in fact, have the authority to regulate private, consensual sexual activity of adults, referencing supporting cases.

“It’s an embarrassment for the state of California to have an attorney general who is using Bowers, which was the U.S. Supreme Court 1986 ruling that said that people don’t have the right to be homosexuals or to have homosexual sex, [to support her argument],” said Doogan.

The plaintiffs have a couple more weeks to respond to the defendant’s Motion to Dismiss. Ultimately, there will be a hearing to decide the motion on August 7. If the motion to dismiss is granted, the plaintiffs plan on appealing to the Ninth Circuit Court of Appeals. If that court decides against them, they say they will appeal again. ESPLERP crowdfunded $30,000 to file the lawsuit, and they’re currently crowdfunding to raise money for the anticipated appeals.

If prostitution were decriminalized tomorrow, Robinson says, “I would be able to dial 911 and report violence, any crime, or any tips on trafficking. I would be able to forge a relationship with law enforcement and sex workers in my local community. I would no longer fear that another SWAT team will kick in my door and drag me off to jail. I would be free. I would feel safe.”

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