Imagine what it’s like to work a job that is prohibited by local, state, and federal laws and policies. These policies make it extremely difficult to speak openly about or advertise your services, to secure safe, reliable spaces where you can work alone or with others, to utilize financial institutions, and to record your employment on official forms that may require it. You’re constantly aware that your trade leaves you vulnerable to surveillance, arrest, and criminal prosecution. 

This is the daily reality of sex workers. Criminalization leaves sex workers vulnerable to physical and sexual violence by those who understand the law to be on their side. Criminalization perpetuates structural violence against people in the sex trades, leading to housing precarity, poor health outcomes, exclusion from educational and employment opportunities, and incarceration.

Advocates will soon mark the International Day to End Violence Against Sex Workers, and it is past time for policymakers to decriminalize sex work.

Violence against Sex Workers

Research shows that sex workers are particularly vulnerable to physical and sexual violence at work. Globally, sex workers have a 45- 75% chance of experiencing sexual violence on the job. Individual studies of sex work in the US confirm high rates of violence, often from law enforcement.  Street workers (who are more likely to be of color, trans, and housing precarious), are especially vulnerable. One New York City-based study of street workers found that 80% had experienced violence and 30% reported violence or threats of violence from law enforcement. A similar study of indoor workers found that 46% had been victims of violence and 14% had experienced police violence. Migrants and LGBTQ sex workers are also more likely to encounter violence.

Criminalization Perpetuates Violence

Violence against sex workers is not inherent to the work but is exacerbated by criminalization. Sex work is criminalized through a mix of municipal, county, state, and federal laws, policies, and policing practices. Most prohibitions against commercial sex are laws that criminalize the activities surrounding commercial sex, including: advertising or soliciting for the purposes of prostitution, transporting people involved in sex work, renting property to or keeping a “house of prostitution,” loitering, and assisting people involved in the sale of sexual services. 

While no federal laws explicitly criminalize the sale of sex, federal policy has long adopted a hard line against sexual commerce through various immigration, interstate commerce, and anti-trafficking legislation. Sex trafficking is overwhelmingly conceptualized as a problem of crime control. Enormous resources have been allocated to law enforcement agencies and non-profit organizations that may offer very little in the way of social services. The crime control agenda leads to traumatizing raid and rescue operations, surveillance of Internet platforms, and court-mandated “rehabilitation” programs. As many scholars have argued, anti-trafficking policies such as the Trafficking Protection Victims Act (2000) have reinforced punitive immigration policies that seek to deter migration.

Anti-trafficking policy – in both design and implementation – has been guided by harmful assumptions. These include a tendency to over-emphasize sex trafficking over far more common forms of labor trafficking, a deliberate conflation of trafficking and sex work, and the goal of abolishing commercial sex itself.

As a result, all people in the sex trades are impacted by anti-sex trafficking policy. These policies also do little to change the socioeconomic conditions that lead to trafficking or exploitation, particularly for those crossing borders. Instead, they have perpetuated further violence by expanding the law enforcement dragnet over people in the sex trades. The new “war on trafficking” harms the marginalized populations they claim to be rescuing. 

Decriminalization Reduces Violence

Instead of trying to prohibit commercial sex, policy should seek to maximize the well-being of people engaged in it. Decriminalization is supported by leading civil rights, public health, human rights, and anti-trafficking organizations. Decriminalization means the repeal of all laws that criminalize the sale of sex amongst consenting adults, including laws that penalize clients or operating a brothel. Regulatory aspects, such as occupational health and safety standards for businesses, would be moved to the civil code. 

New Zealand offers an example of decriminalization in practice. The Prostitution Reform Act (2003) decriminalized sex work, established health and safety regulations, and drew parameters around brothel operations. Trafficking and sex with minors remain a crime. Since its passage, violence and discrimination against sex workers has diminished; relations between sex workers, law enforcement, and civil society have improved; and rates of trafficking have not increased. 

Racial justice advocates have long challenged the ever-expanding role that policing and prisons play in our society. Decriminalization of sex work is a concrete step that policymakers could take to weaken law enforcement power over and decrease violence against marginalized communities.

There is growing public support for decriminalization: recent polling found that a majority of voters support decriminalizing sex work, including 2/3 of voters age 18-44.

Path to Decriminalization: 

Multiple steps can be taken on local, state, and federal levels to protect sex workers. 

Local

●      Repeal local anti-loitering for the purposes of prostitution ordinances. These laws lead to arbitrary and discriminatory policing practices that do harm to cis and trans women of color.

State

●      Advocate for safe reporting laws which allow sex workers to report violence or crimes committed against them without fearing arrest or prosecution

●      Prohibit entrapment by state agents. It is not uncommon for law enforcement to entrap and engage in sexual conduct with sex workers in order to make prostitution arrests. 

●      Audit and end prostitution diversion programs. Researchers have found that these programs fail to achieve their goals and exercise coercive control over individuals. 

●      Pass policies that automatically expunge the criminal records of those with prostitution-related convictions. Without expungement, finding non-sex work employment and housing can be challenging.

Federal

●      Support the Safe Sex Workers Study Act, which will initiate a federal study of the impact of the Fight Online Sex Trafficking Act. FOSTA has had a devastating impact on people in the sex trades and been found to be ineffective in a recent U.S. General Accounting Office review. 

●      Oppose the EARN-IT Act. This Act is touted as another anti-exploitation bill but is a cyber-surveillance measure. The EARN-IT Act would create a 19 -person commission, headed by the U.S. Attorney General, empowered to create online speech rules. The Act will likely lead to the deplatforming of and greater harm to sex workers.

●      Repeal federal immigration policies that restrict the entry of anyone who has engaged in prostitution 

●      Demand that subsequent reauthorizations of PEPFAR, the major source of global funding for HIV/AIDS programs, repeal the anti-prostitution pledge which requires any organization receiving funding to state their opposition to “prostitution and sex trafficking.” 

How long must sex workers wait to be free from violence and harm?

The answer to this question is in many respects a matter of political will. Rather than making the value judgment that sexual labor is immoral, and should therefore be criminal, policymakers should adopt a labor and human rights perspective that affirms the autonomy and dignity of people engaged in sexual labor. The public has an important role to play in this fight, by advocating for pro-sex worker policies as part of a commitment to gender, racial, LGBTQ, and economic justice.