The case for legalizing sex work

Cornelia Li

IT WAS DIFFICULT to know exactly what the crowd was applauding when New England Patriots owner Robert Kraft walked into the TD Garden during a Celtics game back in April.

Were the fans just congratulating him for his team’s latest Super Bowl victory?

Or were they trying, through a show of solidarity with the billionaire, to indicate that paying for sex isn’t really a big deal?

It certainly seemed like a big deal a few months before when a police investigation involving hidden cameras and microphones netted several powerful customers — including Kraft — who allegedly paid for sexual services in a Florida massage parlor. The police had been granted search warrants to determine whether the women working at massage spas across the state had been trafficked; officials who spoke to the press described frightened Asian women living at the businesses, their passports confiscated, unable to leave. But after the investigation those suspicions melted away. Not a single person was charged with trafficking in connection with the sting.

“I am not at all surprised that they haven’t found any evidence of trafficking in the Kraft case,” Jessie Sage, a writer and sex worker advocate, told Rolling Stone in April. “In our current political climate, trafficking rhetoric is used as a shortcut to incite moral panic about the buying and selling of sex.”

It’s true: Prostitution in America has been thoroughly and purposefully conflated with trafficking, leading to a prohibition of many kinds of sex work in most parts of the country. These laws are based on a false morality which claims that all sex work is, by definition, coerced, and that no person — and certainly no woman — can consent to sell sex for money.

And because selling sex is illegal, it becomes much more difficult to identify genuine trafficking victims, or improve conditions for America’s voluntary sex workers. (Sex work is defined by the World Health Organization as “the provision of sexual services for money or goods.” Those services can be as chaste as sexy talk on a phone line or as explicit as “full service” prostitution.)

Thanks to prohibition, therefore, we may never know whether the women who allegedly serviced Kraft were there of their own free will. These women may desperately need our help. But with all nuance off the table, it’s impossible to disentangle the truth — and the women, already facing charges, certainly weren’t willing to talk to police.

There’s a solution to this confusion — and to the scourge of actual sex trafficking. It’s a solution backed by scientific research and data, and one that’s already in place in other countries.

The best way to fight human trafficking is to decriminalize all sex work.

ALL SEX WORK is trafficking: That’s an old idea, one that has long served ulterior agendas. The notion became popular in the late 19th century when sex work was legal in most places in the US.

The first public crusade conflating sex work and trafficking began as a racist backlash against nonwhites and immigrants, marked by campaigns against “white slavery.” The narrative was always the same: Nefarious ethnic men were luring young white women into a life of sexual servitude. The men were by turns Jewish, Chinese, Latino — whoever was handy.

The specter of sex slavery was titillating, and not just to xenophobes. Publishers used lurid stories to sell newspapers; racists used it to prosecute mixed-race couples; and suffragettes used it as an argument for the empowerment of women. As the writer Hallie Leiberman put it, “Anti-sex-trafficking campaigns have never been proved to be effective in eliminating sex trafficking. They have clearly been successful in generating money and attention for other causes.”

Politicians still use trafficking to score cheap points with both liberal voters — who see sex work as misogynist, coercive, and oppressive — and conservative voters — who see it as sinful. Anti-sex-work lobbying organizations argue that all sex work is coerced, and that prostitution is inherently violent or degrading.

Even politicians who don’t choose to blindly support anti-sex-work measures find it difficult to campaign for more realistic legislation. “No one is going to stand up and say, ‘I’m a supporter of trafficking’ when the claim is accepted that most prostitutes are trafficked,” said Ronald Weitzer, a sociologist with George Washington University and author of “Legalizing Prostitution: From Illicit Vice to Lawful Business.”

But not all sex workers are victims either, Weitzer reiterates: “Those who decide to stay with [sex work] are making a clear decision to do so . . . I don’t want to romanticize prostitution, but there are a lot of other jobs that are worse.”

In fact, many sex workers are more like Emma Evans (her professional name), 47, of California, who started working as a phone-sex operator nearly 30 years ago. When she was in a financial pinch a few years back and needed money fast, she got back into the industry.

These days she mostly offers her services as a professional dominatrix over the phone or online — which is legal — but she also has clients she meets for paid sex — which is not. She says she earns under $100,000 a year, but likes working with clients she’s established a rapport with, and she appreciates the flexibility the work brings. A chronic medical condition makes it hard for her to work regular hours.

Evans would prefer that all her work be legal. Not just regulated — completely decriminalized. Legalization, as practiced in places like Nevada (the only US state where prostitution is permitted), tends to create tightly controlled red light districts, with an underclass of illicit sex workers who are still subject to arrest and abuse.

Evans doesn’t think laws or regulations specifically targeting sex work are necessary. If you look at sex work as labor, Evans said, it becomes clear that most of the problems in the industry are already illegal. “Most people’s concerns tend to be things like, how would [decriminalized sex work] be regulated,” she said. “Well, we already have laws against slavery, against rape, we have laws that deal with consent, laws that deal with labor in the workplace. All these laws would cover sex work if it was decriminalized.”

IT’S HARD FOR Americans to picture what decriminalizing sex work would look like. As Weitzer points out in his book, “When legalization is debated in the US, it is usually in the abstract, without reference to actually existing legal systems.” One advantage of this is that it allows anti-sex work advocates to fudge their figures, since it’s impossible to get accurate data on a clandestine industry.

But there’s a wealth of reliable data available from wide-scale social experiments with decriminalization, enacted by governments around the world in different ways. Sex work policy doesn’t have to be invented from whole cloth.

A recent study at the London School of Hygiene & Tropical Medicine in the UK reviewed the findings of 134 studies conducted since 1990 in countries that had decriminalized or legalized sex work, as well as those which continue to outlaw it.

Lucy Platt, a professor of public health epidemiology and lead author on the two-year study, found that the more Draconian the laws around sex work, the less likely sex workers were to freely choose their clients, and the more likely they were to be coerced into sex work. In other words, the more measures a government had taken to outlaw sex work, the more trafficking occurred.

“Criminalization forced people underground, forced them to operate in the shadows, to deal with bad actors like pimps and traffickers, and increased the chances of victimization by clients who think they can get away with this because these are stigmatized marginalized people,” Platt said by phone from the UK.

Even supposedly progressive policies like the Nordic Model, where customers are arrested rather than prostitutes — a solution much championed in the US — does little to quash trafficking or improve sex workers’ lives, her study found.

On the other hand, trafficking decreases and workers’ conditions improve when sex work is legal. Take New South Wales, Australia, where all sex work was decriminalized in 1995. A government-sponsored follow-up study in 2012 found that “pimping has not been a significant feature of the sex industry for decades”; that there was “no evidence of recent trafficking of female sex workers . . . in marked contrast to the 1990s”; and that even migrant sex workers from Asia, a category of sex workers at risk for trafficking, “now have far more autonomy, including student visas and residency status, and much better health outcomes.”

In New Zealand, sex work was decriminalized in 2003 after years of advocacy by the New Zealand Prostitutes’ Collective. A New Zealand ministry of justice review in 2008 reported no incidents of trafficking, nor had the number of sex workers increased overall. (Note that New Zealand’s definition of trafficking is more clearly defined than the American usage.) What changed instead was workers’ autonomy and safety. One study found that only 47 percent of New Zealand brothel workers had refused to see a client in the year before decriminalization; afterwards, the number rose to 68 percent.

When problems arise, sex workers have access to the same law enforcement resources as everyone else — in 2014 one even brought a sexual harassment charge against a brothel owner, and won the case. (New Zealand obtained its first human trafficking convictions in 2016 — in the apple-picking industry.)

Decriminalization, or just legalization, also makes it less likely for workers to contract STDs, including HIV. In Nevada, where abolitionists are currently staging a push to close the state’s legal brothels, the percent of legal sex workers who tested positive for HIV in 2005 was 0 — compared with 47.5 percent among illegal sex workers in New Jersey.

“It’s important to note that opponents of decriminalization often voice concern that [sex work] normalizes violence and gender inequality, particularly for people who see all sex work as violence per se,” Platt said. “But our review clearly shows that criminalization, including criminalizing clients, fuels violence. It restricts access to justice and reinforces stigma and marginalization in women and sexual and gender minorities.”

Platt said that her review, 18 months in the making, doesn’t say anything really new — only what sex workers have been saying for years. The data, she believes, make clear an ethical imperative to decriminalize sex work.

Opponents of sex work often claim that sex work is inherently immoral, she said, but “they should be turning it around and taking the view that policymakers have a moral imperative to support policies that protect these populations, and to show that criminalization is doing the opposite.”

But it’s not clear that lawmakers in the US are ready to listen to sex workers, or to the data.

EVEN THE MOST progressive American politicians have bought the sex work/trafficking narrative. Take Elizabeth Warren’s End Banking For Human Traffickers Act, which the senator introduced in 2017.

“Human trafficking is an ugly stain on humanity, and we need to use every possible tool to stop it,” Warren said in a press release when the bill was announced. “This bill will give financial institutions and regulators additional weapons to fight this terrible crime by helping them cut off traffickers’ access to the banking system.”

But Warren’s bill will give financial organizations an incentive to cut off all customers who sell sex — even those who do it of their own free will. “If this bill is passed in a climate where sex work is so stigmatized that no distinction is made between a trafficked individual and someone who is just trying to survive, you’re just as likely to see vulnerable people’s bank accounts closed as actual traffickers caught,” sex worker and political organizer Liara Roux told the Huffington Post.

Roux and other activists fear a reprise of what happened last year when Congress passed the Stop Enabling Sex Traffickers Act, or SESTA (and its House companion bill, the Fight Online Sex Trafficking Act, or FOSTA). The twin bills made websites legally liable for hosting anything that could be construed as sex solicitation, with no distinction between coerced trafficking and voluntary prostitution.

Anti-trafficking nonprofits and lobbyists endorsed the measure, saying it would protect victims by quelling illicit commerce. But sex work advocates spoke out against it, saying it would only drive real trafficking underground while silencing and isolating sex workers.

Since the measure passed, much of what they feared came to pass: Sex workers found themselves without vital tools to connect with each other, pool knowledge, find and screen their clientele, and blacklist dangerous customers. Some said they found themselves back on the streets, subjecting themselves once again to many of the risks technology had mitigated.

This legislation might seem like the work of the political right. But all of the congressional Democrats running for president voted for the measure — and of them, only two, Tulsi Gabbard and Kamala Harris, have tentatively said that they might support decriminalizing sex work in the future. “When you are talking about consenting adults, I think that you know, yes, we should really consider that we can’t criminalize consensual behavior as long as no one is being harmed,” Harris told the Root’s Terrell Starr in February.

But by April she had corrected course, explaining on CNN that of course she believed paying for sex should be a crime, but that all sex workers should be classified as victims.

EVANS, THE SEX worker, was prepared to support Warren as a presidential candidate. After all, she reasoned, Warren is a liberal reformer who wants to end college debt and provide health care for all.

Then she found out about Warren’s banking bill.

“I’ll vote for Warren if it kills me because she’s not going to put kids in a cage,” she said. “But how [screwed up] is that — to vote for my own destruction? I’d like to vote for somebody who’s not going to kill any of us.”

She’s not being hyperbolic. While statistics on the clandestine sex industry are hard to come by, one study noted dryly, “Sex work is associated with excess mortality and morbidity.”

But if sex work were legal, so much would change. If politicians like Warren felt confident enough to push for decriminalization, we could live in a country where we could know for sure that the women Kraft allegedly employed were well compensated, protected by law and by police, free of STDs, and able to call out abuses within their industry.

We could have that. If only we had the courage to let go of our puritan prudery and listen to what sex workers have been saying for decades: Make sex work legal.