The Implications of Sex Work Prohibition and Possible Legal Remedies
In the vast majority of the United States, sex work is prohibited and punishable by laws that marginalize sex workers. In 2018, roughly one thousand five hundred people were arrested on prostitution-related charges in New York City alone, and New York law currently prohibits offering a “house or place of assignation for lewd persons,” which allows landlords to discriminate against sex workers looking for residence. [1] Laws such as these further complicate the already difficult lives of sex workers. Meanwhile, other nations have tried different approaches to sex work through three main legal practices: legalization, abolition, and decriminalization. [2] Decriminalization is recognized as the most effective method of protecting sex workers because it allows them to report misconduct to the police, access necessary social services, and create institutions to make their work less dangerous.[3]
Sex work, which is distinct from human trafficking and other forms of sexual exploitation, is defined by Amnesty International as “the exchange of sexual services (involving sexual acts) between consenting adults.” [4] It remains a field that places individuals in an incredibly vulnerable position and has led to various complications regarding effective implementation within jurisprudence.
Public defender and journalist, Rachel Marshall, criticizes the prohibition system in place in the vast majority of the United States in Sex Workers and Human Rights: A Critical Analysis of Laws Regarding Sex Work because it leads to sex workers working alone without any type of support system or ability to report injustices due to fundamental flaws within the system. [5] Those within the practice are kept isolated from others involved in sex work, as well as outside sources of support and security because prohibition laws tend to target the organizational component of the industry, which has the greatest potential to keep sex workers safe. [6] Amnesty International notes that “sex workers (are banned) from working together, renting secure premises, or hiring security or other support staff, meaning that they face prosecution and other penalties if they try to operate in safety.” [7] Additionally, because their work and means of income are illegal, sex workers do not feel safe speaking to the police, leaving them vulnerable to exploitation and sexual violence. [8]
Prohibition also puts sex workers at risk for STIs by disincentivizing condom use, creating a public health issue. Specifically, condoms are seen as possible evidence of illegal sex work and therefore discouraged. [9] In New York, condoms are so frequently used as evidence of illegal activity that the supporting deposition, which is written by the officer who made the arrest, has a standard field for the number of condoms seized. [10] This has increased the spread of STIs, including HIV. In prioritizing the elimination of sex work, governing bodies have left sex workers vulnerable.
The Scandinavian model of abolition, on the other hand, puts the onus on the client as opposed to the sex worker by making it illegal to purchase sex rather than to sell it. Countries with abolition laws promote social stigmas against sex workers and are ineffective at implementing safety measures. In fact, abolition makes sex work even less safe because deals are typically made more quickly and in less public locations due to their illegal nature, which increases the risk of physical harm and possible abduction. [12] Additionally, despite the potential for legal consequences to deter those considering buying sex, after its adoption in Sweden, there was no evidence of a decreased demand for sex work. [13] Germany’s strategy of legalization and strict regulation has also been unsuccessful at increasing the rights of sex workers because many aspects of sex work remain illegal. [14] When interviewed, a German sex worker argued that the German model still criminalized “sex workers who cannot or will not fulfill various bureaucratic responsibilities, and therefore retains some of the worst harms of criminalization.” [15] As a result, sex workers in Germany remain fearful that the law will work against them instead of helping to protect them.
Unlike the other legal approaches, decriminalization makes it possible for sex workers to access police protection, collaborate and institutionalize, and stop the spread of STIs including HIV. In New Zealand, decriminalization refocused sex work legislation towards protection and made it possible for sex workers to report abuse and access key social services because their work was no longer illegal. [16] Decriminalization has also been shown to help decrease human trafficking, as sex workers are often aware of local exploitation, and when sex work is decriminalized, sex workers are more willing to collaborate with the police. [17]
Decriminalization has not only increased transparency but also placed further emphasis on preventative measures that improve the safety of sex workers. After decriminalization, sex workers are able to create new spaces, institutions, and policies to help protect themselves. In New Zealand, this effort took the form of the New Zealand Prostitutes’ Collective, which helps educate sex workers and brothel operators about their rights as well as encourages safe practices. [18] And sex work was included in New Zealand’s Health and Safety Employment Act, which enabled the creation of occupational health guidelines for the sex industry. [19]
Decriminalization also has the potential to limit public health risks involved with sex work. A study by a team at the University of British Columbia concluded that decriminalization of sex work could prevent up to 46 percent of HIV infections in the next decade by promoting improved condom use and education, safer work environments, and decreased levels of violence. [20] This makes it even more effective than antiretroviral treatment in reducing the spread of HIV among female sex workers. [21]
The topic of decriminalization is particularly timely because on June 10, 2019, Bill S6419, the Stop Violence in the Sex Trades Act, was introduced in the New York State Senate. If passed, this bill would make New York the first state in the nation to completely decriminalize sex work, as well as a possible model for other states to follow. [22] Despite the evidence of decriminalization’s positive impact, many New Yorkers remain uncomfortable with this type of bill. However, the bill has garnered support from those in the sex work community including Jared Trujillo, a former sex worker, who argued that for sex workers “What (the bill) does decriminalize is really just existing.” [23] Even if the bill is passed, just like in New Zealand, it will come down to the work of sex workers and advocates in organizations such as Decrim NY to make sure that sex workers are familiar with their rights and encouraged to take advantage of their new ability to work together and protect themselves.
The bill in New York is a massive step forward in relation to America’s sex work legislation and offers guidance for other states looking to move in the same direction. Within the United States, the fight over legalization will remain an upward battle. However, the implementation of a legal approach that protects rather than criminalizes American sex workers is no longer an impossibility.
[1] New Republic: Grant, Melissa Gira. "A Historic Breakthrough for Sex Workers' Rights." The New Republic, June 9, 2019. Accessed June 24, 2019. https://newrepublic.com/article/154111/new-york-bill-decriminalization-prostitution-sex-worker-rights.
[2] Rachel Marshall, "Sex Workers and Human Rights: A Critical Analysis of Laws regarding Sex Work," William & Mary Journal of Women and the Law 23, no. 1 (Fall 2016): 47
[3] Ibid.
[4] Amnesty International, Amnesty International Policy on State Obligations to Respect, Protect and Fulfill the Human Rights of Sex Workers. POL 30/4062/2016: 2016. https://www.amnesty.org/en/documents/pol30/4062/2016/en/. Accessed July 21, 2019.
[5] Rachel Marshall, "Sex Workers and Human Rights: A Critical Analysis of Laws regarding Sex Work," William & Mary Journal of Women and the Law 23, no. 1 (Fall 2016): 47
[6] Ibid.
[7]Amnesty International, Amnesty International Policy on State Obligations to Respect, Protect and Fulfill the Human Rights of Sex Workers. POL 30/4062/2016: 2016. https://www.amnesty.org/en/documents/pol30/4062/2016/en/. Accessed July 21, 2019.
[8] Rachel Marshall, "Sex Workers and Human Rights: A Critical Analysis of Laws regarding Sex Work," William & Mary Journal of Women and the Law 23, no. 1 (Fall 2016): 47
[9] Open Society Foundations, 10 Reasons to Decriminalize Sex Work, July 2012. https://www.opensocietyfoundations.org/publications/ten-reasons-decriminalize-sex-work. Accessed July 21, 2019.
[10] Grant, Melissa Gira. "Playing the Whore, The Work." Verso. Last modified July 18, 2019. Accessed July 21, 2019.
https://www.versobooks.com/blogs/3168-playing-the-whore-the-work.
[12] Rachel Marshall, "Sex Workers and Human Rights: A Critical Analysis of Laws regarding Sex Work," William & Mary Journal of Women and the Law 23, no. 1 (Fall 2016): 47
[13] Ibid.
[14] Ibid.
[15] Amnesty International, Amnesty International Policy on State Obligations to Respect, Protect and Fulfill the Human Rights of Sex Workers. POL 30/4062/2016: 2016. https://www.amnesty.org/en/documents/pol30/4062/2016/en/. Accessed July 21, 2019.
[16] Rachel Marshall, "Sex Workers and Human Rights: A Critical Analysis of Laws regarding Sex Work," William & Mary Journal of Women and the Law 23, no. 1 (Fall 2016): 47
[17] Open Society Foundations, 10 Reasons to Decriminalize Sex Work, July 2012. https://www.opensocietyfoundations.org/publications/ten-reasons-decriminalize-sex-work. Accessed July 21, 2019.
[18] New Zealand Prostitutes' Collective. Accessed July 21, 2019. https://www.nzpc.org.nz/.
[19] Smith, Molly. "The Problem With the 'Swedish Model' for Sex Work Laws." The New Republic, June 8, 2015. Accessed July 21, 2019. https://newrepublic.com/article/121981/northern-ireland-sex-work-law-based-wrong-model.
[20] Shannon et al., Global epidemiology of HIV among female sex workers: influence of structural determinants. The Lancet 385(9962), (2014): 55-71.
[21] Ibid.
[22] New Republic: Grant, Melissa Gira. "A Historic Breakthrough for Sex Workers' Rights." The New Republic, June 9, 2019. Accessed June 24, 2019. https://newrepublic.com/article/154111/new-york-bill-decriminalization-prostitution-sex-worker-rights.
[23] Ibid.