Sex Work, Safety and The Spector of De-Criminalization

As a nation we need to decide if reducing prostitution is a societal goal.

The ACLU recently affirmed its position that prostitution should be decriminalized.   The organization supports decriminalization for sex between consenting adults.  I suspect that most would agree.  The position is not without controversy and criticism, however.  For those who advocate against violence, the solution is not simple.  After all, women are still battling the inevitable rape defense of "consent". 

In support of its position, the ACLU stated that while arresting prostitutes has been the policy for centuries, it has been ineffective in reducing prostitution.  If the goal is to reduce prostitution, what this position ignores is that while arresting sex-workers is and always has been an ineffective solution, what has not been consistently tested is a policy of arresting customers.  In fact, most district attorney's offices have a policy of not arresting or prosecuting customers, despite the fact that soliciting prostitution is a crime.  Any efforts at arresting customers typically have been temporary.   The policy of  arresting only the seller in the transaction historically has resulted in protecting men while making criminals of women.

Customers can be the knowing or unwitting promoters of human trafficking.  The idealization of the suburban housewife deciding on a sex work career or the college student looking for funds to pay for her education are sometimes true.  But many female sex workers are trafficked, enslaved and not independent in their work.  The younger the sex worker, the likelier she is trafficked.  Prior traumatization, including rape and incest, are common histories of sex workers.  Many have addictions compounding the issue of whether or not consent can be given.  "Consent" for many sex workers is not a realistic concept, yet lack of consent would be  nearly impossible to prove.   How are those being paid for sex to overcome a consent defense in a rape or assault and battery hearing? While the ACLU and others supporting decriminalization of consensual sex still endorse enforcement of anti-trafficking laws. One consequence of decriminalization will be enforcement of anti-trafficking laws primarily when minors are involved. Like statutory rape, another controversial concept, it is easier to prove crime based on age than other sex crimes.

Why individuals engage in sex work is not always straight forward. Certainly sex workers should not be arrested for their services.  Particularly those women who have been trafficked will be protected by decriminalizing the sale of sex.  Current laws re-victimize and re-traumatize trafficked victims who are then swept into the criminal justice system.

We do not know if trafficking will decrease if customers are arrested.   Sweden and some other countries have implemented customer arrest.  "Compelling evidence shows that across-the-board decriminalization supports sex trafficking without improving health, safety or control of organized crime, as demand for unsafe and dangerous sex rises exponentially. Decriminalization is a failed experiment" reports Max Waltman, a Ph. D. candidate at Stockholm University. Many disagree. While prostitution may be  in Sweden, we do not know if trafficking has been reduced.  And isn't trafficking and other forced prostitution the essential problem to be solved?

And what do sex-workers say?  Some independent sex workers favor decriminalization. Others worry that decriminalization will lead to customers being more abusive.  They argue that if the purchase of sex services is decriminalized, the abused sex worker will effectively have no recourse.  Police and prosecutors will find it nearly impossible to prosecute abuse perpetrated by a customer.  While assault and battery will remain a crime, the customer's saying that the abuse was bargained for will be difficult to disprove.  But the threat or risk of a customer being arrested might at least give the sex worker some control over a customer's behavior.  The power imbalance needs to shift from the customer to the sex worker if the workers are to attain any level of safety.    At the moment, we have no remedies in place that empower the workers. 

Remedies are complex.  Cultural shifts need to occur before sex workers gain courtroom and popular credibility.  Before comprehensive decriminalization occurs, there must be assurances that effective systems are in place to protect abused sex workers and those who are in the profession involuntarily.  The solutions are not going to be as straightforward as  whether to decriminalize or not.