Sex Work: Criminalization Is Discrimination
There are people who are severely stigmatized, marginalized, and suffer de jure discrimination in many countries but who are seldom accorded much notice. These people are sex workers (prostitutes).
Charges are made that prostitution laws are discriminatorily applied, enforcement falling disproportionately on transgender women and women of color (Georgetown 2018, 360; New York) and on sex workers as opposed to their male customers (Lucas 1995, 59), although now enforcement efforts are often shifting to focus on the customer (Vanwesenbeeck 2017, 1632; Seattle). Making a legal distinction between casual sex for compensation and casual sex for any other reason is itself discriminatory, regardless of whether the law is even-handedly enforced across genders and race. Stigma is ever-present in sex work (Ronald Weitzer, 2018) and criminalization fuels stigma and discrimination (PLOS Medicine 2018, 45-46; Vanwesenbeeck’s 2017, 1632). The “whore” is an outcast, and criminalization formalizes that status.
But there are signs that some in positions of power and influence have begun to retreat from a criminalizing model for sex work. In 2019, the Northern Territory of Australia joined New South Wales and New Zealand in a fairly thorough decriminalization of sex work. Earlier, in 2016, Amnesty International described the consequences of setting sex workers apart and published its policy calling for decriminalization of both the selling and buying of sexual services and the end to discrimination and marginalization of sex workers. It did so after conducting extensive global research on sex work, and, in so doing, it joined a number of other international organizations. (See Amnesty’s Research Summary.)
In the U.S., companion bills pending in the federal House and Senate, the “Safe Sex Workers Study Act,” call for a national study of the health and safety of sex workers, including impacts of SESTA/FOSTA, previous legislation which effectively blocked sex workers from advertising online. The draft House findings mention increased sex worker homelessness, exposure to pimping, and physical and sexual violence. See H.R.5448 and here. On March 3 of this year, 250 scholars and researchers from around the world released an open letter President Biden calling for decriminalization of sex work.
Within the past year, Seattle repealed its laws against loitering for purposes of prostitution as did New York state (see here, here, and here). Recently, attempts to decriminalize sex work, or, at least, study the matter, have been mounted in Vermont, Washington D.C., Oregon, New Hampshire, and New York (see here and here). California moved a step closer to giving recognition to sex workers, when, effective in 2020, it enacted a provision preventing the arrest of a sex worker who is reporting a serious crime and forbidding possession of condoms to be used as evidence of prostitution.
Criminalizing sex work conflicts with rights recognized by the California Supreme Court. A woman has a privacy right to terminate her pregnancy because her decision implicates her “interest in retaining personal control over the integrity of her own body,” and is central to her right to control “her social role and personal destiny” (American Academy of Pediatrics v. Lungren (1997)16 Cal.4th 307, 332-333). The court respects a sex worker’s bodily autonomy and honors her right to contraception, even sterilization (Conservatorship of Valerie N. (1985) 40 Cal.3d 143), her right to gay relationships (In re Marriage Cases (2008) 43 Cal.4th 757), and her right to refuse life sustaining medication (In re Qawi (2004) 32 Cal.4th 1). Yet will it also tell her that when she chooses to exchange her sexuality for money rather than in a non-economic relationship, no intimately personal decision about her own body, her social role, or her personal destiny is at issue?
In the public debate, empirical data is often overshadowed by disinformation. An area that is always vulnerable to manipulative discourse is sex trafficking. Disinformation efforts conflate sex trafficking with consensual, adult sex work in an effort to press for criminalization of all sex work. Numerous respected scholars and authorities have confirmed this (Weitzer 2020, 402; Weitzer 2011, 1342-1344, 1357-1361; Amnesty International 2016, 16; Vanwesenbeeck 2013, 14; UNAIDS 2012, 3). And most troubling, activists have influenced the U.S. government to compel other governments to accept this conflation of trafficking and sex work (UN Global Commission 2012, 40). Consensual, adult sex work is not trafficking. Looking at jurisdictions that regulate or have decriminalized sex work, there is no reason to conclude that such policies lead to increased sex trafficking, as long as we avoid data that counts consensual, adult sex work by migrants as trafficking (Weitzer, 2020, 411; Amnesty Q&A 2016, § 9; Strathdee 2015, 6).
Violence and disease are two other subjects where our legal and political institutions should be responsive to empirically-driven research findings. Studies from an impressive variety of sources find that it is criminalization, not decriminalization, that exacerbates the violence and health issues, primarily HIV transmission, that are often associated with sex work (BMC Infectious Diseases 2019, passim; PLOS Medicine 2018, passim; several studies in The Lancet, including Shannon 2018, 700-705, Reeves 2017, 134-139, and Shannon 2015, 62-67; Vanwesenbeeck 2017, 1632-1635; Amnesty 2016, 10-13; UN Global Commission 2012, passim). Further, attempts to address these issues by criminalizing only clients fail (ACLU 2020, 5-10; Amnesty 2016, 12; UNAIDS 2012, 2; UN Global Commission 2012, 36, 38). Demonizing clients is not the answer. Full decriminalization is.
Jerald Mosley was a former Supervising Deputy Attorney General at the California Department of Justice, writing and speaking on law and sex work. He has also co-founded Bruin Alumni in Defense of Free Speech, an association of alumni supporting free speech and viewpoint diversity on campus.