The Florida legislature passed legislation within the past week, Senate Bill 540 and House Bill 851, to establish a public database that tracks people convicted of, or who have pleaded guilty to, soliciting paid sex.
While the legislation’s bipartisan authors consider it to be a step toward ending human trafficking, critics call it a means to publicly shame clients and others associated with people who do consensual sex work.
The Soliciting for Prostitution Public Database will include anyone convicted of or pleading guilty to “soliciting, inducing, enticing, or procuring another to commit prostitution, lewdness, or assignation,” according to the Senate version of the bill, drafted by Democratic Senator Lauren Book.
Accessible to anyone with an internet connection, the online Database would include a person’s legal name, last known address, color photograph and offense. After five years, a person recorded in the Database may be removed if they have not committed a “sexual offense, including, but not limited to, human trafficking, or an offense that would require registration as a sexual offender,” according to the latest version of the bill.
“This bill says to traffickers and pimps: the State of Florida is CLOSED for business,” said Sen. Book in a press release.“When we curb the demand for the illegal sale and purchase of sex, we will also curb the profitability of human trafficking.”
But a March 2019 analysis conducted by the Florida Senate Committee on Community Affairs staff affirmed sex worker advocates’ fears: The Database “will collect and centralize information relating to those convicted of soliciting prostitution, regardless of whether the person subject to the solicitation is a victim of human trafficking or not.”
“What keeps me up at night is the amount of identifying information made publicly available on these registries.”
Activists from Decriminalize Sex Work and Sex Workers Organizing Project (SWOP) believe that the registration will ensnare consensual sex workers and their clients. For SWOP Behind Bars organizer Alex Andrews, the legislation is “mostly an anti-sex-work bill and [has] nothing to do with trafficking.”
“What is most likely is that sex workers who work together for safety will be charged with promoting or trafficking, be put on the registry and then labeled a predator,” Kaytlin Bailey of Decriminalize Sex Work told Filter. “What keeps me up at night is the amount of identifying information made publicly available on these registries.”
Additionally, the “end demand” model in which the legislation is rooted has been shown to intensify the socio-economic precarious of sex workers’ lives. A study from the University of British Columbia that interviewed 854 sex workers found that their access to health services declined following the implementation of Canada’s “end demand” laws. In France, Hélène Le Bail, a researcher at Sciences Po CERI in Paris, found that such laws resulted in an “acute increase in socioeconomic vulnerability.”
“The desperate street-based sex workers don’t suddenly get great jobs with company cars and health benefits just because the demand for their services dried up suddenly,” wrote Andrews. “They become MORE desperate and are willing to engage in riskier behavior.”
Savannah Parvu, an anti-sex-trafficking advocate and survivor who advised Rep. Fitzenhagen on the bill, emphasizes that the bill is focused on sex trafficking, but notes that that sex workers are perhaps acceptable collateral.
“Human trafficking victims are just that… VICTIMS. ‘Sex workers’ claim they’re doing it willingly, so if a bill that is designed to help human trafficking victims puts sex workers in danger or is bad for ‘business’ then maybe it’s time for a career change,” wrote Parvu in a March 27 blog post. “That may sound cruel, but Victims don’t have a choice… ‘sex workers’ do.”
“Men who pay for sex aren’t predators. Predators who pose as clients are.”
By collating anyone convicted of soliciting paid sex, the database could further stigmatize clients and potentially make conditions more dangerous for workers who have already been pushed out of safer online solicitation spaces, like Craigslist and Backpage, due to federal legislation.
“This isn’t creating a list of bad or dangerous clients; it’s just a list of clients who got caught by the police,” Bailey told Filter. “It’s impossible to tell the good guys from the bad if you lump them all together. Men who pay for sex aren’t predators. Predators who pose as clients are. When you make potential clients scared of giving sex workers the information they need to screen, you make it impossible to tell the difference between men who are scared and men who are scary.”
And inclusion in the Database would have ripple effects across a client’s life. “Putting them on a registry and imposing a mandatory sentence of five days for a first offense could result in lost wages and lost jobs,” wrote Andrews. “Public shaming of a consensual act could result in the breaking up of a family. A lost job could result in losing health insurance benefits. A lost job might mean they can’t pay the rent or the mortgage or buy food. They may not be able to get another job because they are on this registry. It perpetuates poverty.”
“Research does not support punitive public shaming. Our legislators need to listen to sex workers and victims of trafficking.”
The bill’s authors are well aware of the criticism—but they don’t necessarily see the issues that activists raise as problems.
“In case it was lost on you, a consensual sex worker, AKA a prostitute, is committing a crime,” Rep. Fitzenhagen said in a March House subcommittee hearing. “It is not my intent to work with them moving forward.”
In contrast, Sen. Book has been known to meet with activists and use their preferred language of “sex workers”/”consensual sex workers,” according to SWOP Behind Bars community organizer Christine Hanavan. But Book still pushed the Database through.
“Book is mostly concerned with serving the victims and survivors, but if someone suggests something to her about going after sex offenders she sees red—that’s personal for her,” commented Hanavan. Sen. Book did not respond to Filter‘s request for comment.
Subcommittee hearings were hot with friction between activists and elected officials, and the Database itself did not have a straight shot through the House.
On March 26, Representative Fitzenhagen, who was described by Hanavan as “primarily concerned with going after ‘criminals’—lumping sex workers in with traffickers,” struck the Database from the text of the bill.
Rep. Fitzenhagen did not respond to requests for comment. But Representative Anna Eskamani, who is familiar with the internal deliberations around the bill, told Filter that there may have been hesitancy because “there was no evidence that such a database would be helpful.”
This falls in line with what Dr. Jill McCracken, an associate professor at the University of South Florida, believes: “Evidence-based research does not support punitive public shaming. Our legislators need to listen to sex workers and victims of trafficking when they tell us to stop these arrests.”
Rory Fleming, a lawyer and Filter contributor who has been involved in the activist organizing around the Database legislation, suspects that Rep. Fitzenhagen temporarily “conceded the registry to expedite the bill.”
The Database returned to the House version of the bill on May 3, while the Senate version had retained it all along. The Senate voted unanimously to pass the bill, and the House almost did so, with only Rep. Eskamani’s voting against.
“If the Database operates retroactively, the court may find that it is unconstitutional in violation of the Ex Post Facto Clause
Now that it is clear that state congress members have made up their minds, activists urge Governor Ron DeSantis to veto the legislation. However, that’s unlikely, as Andrews notes, given DeSantis’s track record of supporting anti-sex-worker legislation like SESTA/FOSTA.
If passed, the Database could raise potential constitutional violations that were noted from the outset by a March Senate subcommittee analysis. Eric Janus, a law professor and director of the Sex Offense Litigation and Policy Resource Center at William Mitchell College of Law, told Filter that “the key question is whether [the Database] constitute[s] some kind of punishment, if they are enacted with punitive intent.”
Accordingly, the analysis found: “If it is determined that the statutory scheme is so punitive either in purpose or effect as to negate the intention to deem it civil, then it could be held unconstitutional.”
The Database has similarities with another much-disputed civil regulatory scheme most are familiar with: Sex Offender Registries. Most glaringly, the Database was originally called a “Registry” when the bills were initially introduced in January 2019. Although the title was changed, the Database, like SORs, makes personal information publicly available.
The constitutionality of the federal Sex Offender Registration Act (SORNA) has also come under question. Although the Supreme Court determined that it was constitutional in 2003, more recently, the Colorado District Court ruled in 2017 that the state’s sex offender registry law violated the Eighth Amendment’s prohibition on cruel and unusual punishment because its “Capacity for public shaming” was deemed punitive.
“Justice Kennedy’s words ring hollow that the state’s website does not provide the public with means to shame the offender,” wrote Senior District Judge Richard P. Matsch in the Millard v. Rankin opinion. “He and his colleagues did not foresee the development of private, commercial websites exploiting the information made available to them … The justices did not foresee the ubiquitous influence of social media.”
Additionally, a retroactive application of the Database to people convicted or pleading guilty to soliciting prostitution could raise more legal issues. The scope is currently unclear—unlike Florida’s own sex offender law, which specified its applicability to those released from prison on or after October 1, 1997. But the Senate analysis suggested that, “if the Database operates retroactively, the court may find that it is unconstitutional in violation of the Ex Post Facto Clause, which prohibits states from enacting laws that change the punishment, and inflict a greater punishment, than the law in place when committed.”
But the odds of the Florida Supreme Court striking down the Database are not in sex work activists’ favor. “The Florida Supreme Court is extremely conservative on criminal justice matters,” said Fleming. “It is nearly impossible FSC would rule this new registry unconstitutional on its face, and almost certain that it would uphold it as applied to basically anyone the statute applies to.”
The fight for sex worker justice continues for SWOP activists. “We will regroup and try to figure out the best way to educate the public, which drives these policies,” said Andrews, “and hope some of those uninformed folks find it in their heart to take up bodily autonomy and right to privacy.”
Photograph: Representative Heather Fitzenhagen. From debate on the House floor on May 2, 2017.