Sex Workers Got No Pardons. Decriminalization Is Overdue.

On October 8, President Biden pardoned thousands of people convicted of simple marijuana possession. In doing so, he took a step toward undoing the harms of the drug war, a notorious era of mass criminalization that has caused untold damage to our communities. This historic, if limited, moment is worthy of celebration. But it throws into sharp relief how the tools of criminalized prohibition continue to wreak havoc on marginalized communities, particularly in the realm of sex work.

Countless examples reflect how law enforcement has victimized marginalized sex workers, using anti-trafficking laws as a means of doing so while sometimes engaged in corruptly protecting real sex traffickers.

Harmful morality policing punishes drug use and poverty, fosters corruption and promotes the investigation of other victimless “crimes” like sex work, as both of our organizations, New Moon Fund and the Law Enforcement Action Partnership, have recognized.

For the past 20 years, people have experienced increased surveillance, policing and discrimination under campaigns to “end demand” for sex work.

Our view as professionals in sex work and policing is neither an outlier nor revolutionary. The links between criminalization and violence were identified by the late Margo St. James, a pioneer for sex workers’ rights, who stated in 1979: “When prostitution is a crime, the message conveyed is that women who are sexual are ‘bad,’ and therefore legitimate victims of sexual assault. Sex becomes a weapon to be used by men.”

On the policing side, as far back as 1936, August Vollmer, known as “the father of modern policing,” wrote that sex work, like drugs, was “not a police problem; it never has and never can be solved by policemen.” History has proven his assertion that enforcing moralistic vice laws leads to police corruption and “engenders disrespect both for law and for the agents of law enforcement.”

For the past 20 years, people have experienced increased surveillance, policing and discrimination under campaigns to “end demand” for sex work. The catalyst for the End Demand model is the publicized conflation of consensual sex work with sex trafficking. End Demand pushes policies such as the Nordic Model (also known as the Equality Model), which presumes all clients of sex workers to be violent predators in need of arrest, and all people who sell sex to be victims in need of saving.

Just like classifying cannabis as a Schedule I substance “with no currently accepted medical use and a high potential for abuse,” conflating consensual adult sex work with sex trafficking is not only obtuse, but has deeply harmful consequences.

To claim that all clients are dangerous predators is simply untrue. Portraying all sellers of sexual services as victims is infantalizing and erases autonomy. Both beliefs promote the damaging criminalization of people who pose no threat to others. If we want to address problems within the sex trade, we need to start by grounding our perspectives in reality.

Sex work, the exchange of erotic or sexual services for money or other items of value, is an umbrella term for many different things. A multitude of modalities include stripping, performing online or on video, direct private or street solicitation, professional BDSM and phone sex. Some sex work is legal and some is criminalized, with laws varying state-to-state.

By contrast, sex trafficking means the use of force, fraud or coercion to compel a person into a commercial sex act. Sex trafficking is also defined as commercial sex involving a minor who is unable to legally consent.

Sex trafficking is clearly a serious matter of abuse. Sex work, in the absence of trafficking, is a matter of personal autonomy and a source of income and pleasure to millions of people in the United States.

Sex workers, marginalized by prohibition, have varying abilities to exercise agency—depending on the extent to which they are policed, stigmatized, or suffer compounding layers of oppression relating to race, gender, class, disability, or immigration status. Just like in other labor sectors, people in the sex trade are vulnerable to exploitation when they lack access to resources, information or community.

Issues of vulnerability cannot be addressed with drug-war tactics such as profiling, mandatory minimum sentencing, civil asset forfeiture or “just say no” campaigns.

We must take our cue from sex workers when it comes to how the field should operate.

We need a new approach to addressing exploitation in the sex trade. For starters, we need to follow the leadership of sex workers, who are on the frontlines of the industry and experts in harm reduction. We must take our cue from sex workers when it comes to how the field should operate.

Second, we need to invest in prevention measures to protect people from becoming vulnerable to exploitation in the first place. What does that look like? It means ensuring access to housing and health care, immigration reform, measures to protect people from poverty, and age-appropriate sex and consent education for young people, among much else.

But to comprehensively address harms in the sex trade, we need to decriminalize sex work, removing all criminal penalties for adults engaged in consensual commercial sex. Crimes like rape, child abuse, kidnapping, assault and sex trafficking will and should remain crimes under decriminalization.

Other countries have shown how this can work. Decriminalization has been the law of the land in New Zealand and parts of Australia for over a decade. Belgium recently joined the list, and South Africa is in the process of reform.

When sex work is decriminalized, sex workers who no longer fear arrest have better access to resources, information and community networks that help them stabilize their lives and stay safe. Discrimination over housing, employment, child custody and education can be more effectively challenged by sex workers when their chosen profession is not considered a criminal act. Essentially, decriminalization enables people to access fundamental building blocks for moving their lives forward.

Undue regulations can fan the flames of inequity, which is why sex workers globally call for decriminalization.

Decriminalization is different from legalization, which is a system of regulations. Under the regulations adopted by some jurisdictions, a person can still be arrested and jailed if found to be out of compliance. Legalization regulations can include strict red light zoning, mandatory registries, travel restrictions and automatic quarantines for sex workers.

Perhaps counterintuitively, legalization would be an unjust and impractical form of sex trade governance, because many sex workers would be logistically unable to adhere to regulations. For instance, if the red light district is hours away, how would a single mother who is a sex worker get there whilst also caring her for children? Or if a sex worker doesn’t fit the beauty standards of a brothel monopoly, where would they be able to safely seek work? Undue regulations can fan the flames of inequity, which is why sex workers globally call for decriminalization.

Under decriminalization, sex workers are better able to pay their taxes without concern for being investigated (yes, sex workers pay their taxes as often as anyone else). Decriminalization could also allow sex workers to obtain business licenses if they wish, and potentially enjoy workplace safety standards. In parts of Australia where sex work is decriminalized, condom use is required for oral and penetrative sex. However, being caught not using a condom is not grounds for arrest; it’s considered a civil infraction enforceable by a fine. Civil regulations such as the condom law in Australia may offer sex workers increased bargaining power in their interactions with clients.

Unfortunately, we cannot even begin to explore these options under the weight of full criminalization, which leaves sex workers vulnerable and costs lives. Record expungement, or even pardons such as the ones President Biden granted—although state-level pardons would have far more practical impact—could help people saddled with criminal records begin to repair their lives.

Criminalized prohibition does not work, and causes many harms. We must not continue to inflict the cruelty of the drug war on a sector as complex and sensitive as commercial sex. We must look at the data compiled by the ACLU, Amnesty International, the WHO and UNAIDS, and join them in calling for the full decriminalization of sex work.

 

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Photograph of 2016 sex workers’ protest in Seattle by Deviant Ollam