The Harm of Anti-Prostitution Loitering Laws
By Anne Gray Fischer | October 5, 2022
In many cities and states, police officers can legally harass, detain, and arrest anyone they decide looks like a “prostitute.” Laws that criminalize loitering “for the purpose of engaging in prostitution” empower police to target people based on their raced and gendered appearance or presumed sexual behaviors. Multiple studies have found that loitering-prostitution law enforcement is a highly discretionary, racist, sexist, and transphobic practice that disenfranchises and profoundly harms targeted people.
Recently, activists have successfully fought to repeal anti-loitering laws. In June 2022, California Governor Gavin Newsom signed Senate Bill 357 into law, repealing loitering laws “for the purpose of engaging in prostitution.” The California success follows on the heels of the repeal of anti-loitering ordinances and laws in Seattle and New York state.
Legislation that repeals prostitution-related misdemeanors is an important step toward reducing harm in the lives of poor cis and trans women of color who are uniquely vulnerable to state and non-state violence.
These laws are part of a longer history of “sexual policing”—state targeting and control of racialized and gendered people and their presumed sexual activities. As I discuss in my book, sexual policing evolved from a predominantly white women-led moral reform movement concerned with the purity of white womanhood during the Jim Crow era. Over the course of the 20th century, sexual policing morphed into a legal regime with tremendous power to target, arrest, and banish poor women of color as alleged threats to urban safety and prosperity. Repealing all laws that criminalize commercial sex is a necessary first step to unraveling structures of gender-based state violence. But the only way to fully unmake this violence is to abolish all forms of sexual policing: to deny police their authority over women’s bodies.
The Fight over Repealing Prostitution Loitering Laws
While the repeal of the loitering-prostitution law was a source of debate in California, supporters and opponents of SB 357 did agree on some fronts. All parties agreed that loitering-prostitution laws empower police to deploy broad discretionary authority to arrest people based on how they look, the clothes they wear, and the items they carry with them. For example, carrying condoms is routinely used against sexually profiled women as evidence of sexual criminality. In other words, all parties agreed that loitering-prostitution laws empower police to transform a gendered person’s mere existence on city streets into a criminal act. Boosters and detractors of the repeal bill also agreed on the material reality of who is most likely to be arrested: that poor women of color are the likeliest targets of loitering-prostitution arrests.
Advocates, policymakers, and law enforcement disagreed on the greatest harm vulnerable women confront. Supporters of the loitering-prostitution laws—police-aligned Democrats, law enforcement, and some anti-sex trafficking advocates—argued that police play a role in rescuing women from trafficking and other forms of nonstate abuse. Vague sex laws with lower evidentiary standards, they claimed, smooth the pathway for helpful police intervention. “This is the quickest, easiest first step to initiate an investigation,” of sex trafficking, former state prosecutor Maggy Krell said.
Those pushing for repeal included sex workers, transgender activists, and the ACLU. They maintained that the broadly defined loitering-prostitution law “was a Jim Crow law that criminalizes Black and trans people in public spaces,” according to Fatima Shabazz, a leader in the DecrimSexWorkCA Coalition. The selectively racist, sexist, classist, and transphobic enforcement of loitering-prostitution laws amounted to “walking while trans” bans and produced state and nonstate violence in the lives of poor women of color. Sexual policing, they argued, degrades women’s rights to city streets and arrests trigger cascading repercussions, including lost income, jobs, housing, and child custody. As Lisseth Sánchez put it, “it is absolutely not necessary to arrest people for their own good.”
The debate over the loitering-prostitution law boiled down to one question: Are the police the problem—or the answer to the problem of violence against women?
Feminists and Sexual Policing
In the 1980s, law enforcement dramatically expanded its urban authority. It did so, in part, through sexual policing. During this period, a group of predominantly white feminist legal scholars, known as “dominance feminists,” revived the Jim Crow moral panics of the early twentieth century. Like their predecessors, dominance feminists pushed for the expansion of police power in the name of women’s protection.
Dominance, or “carceral feminists,” believe in the protective capacity of law enforcement. They defend the criminalization of sexually profiled women as an important shield against the men they consider the greatest threat to women’s safety: so-called pimps and johns. For example, law professor Margaret Baldwin argued that “arrest and incarceration can play an important role in…prostituted women’s survival strategies,” with jails functioning as shelters and providing “temporary respite from violence, hunger, and the prostitution itself.”
In this way, the punishing violence of gender-based arrest and banishment was spun as protection for women. Dominance feminist activism and policymaking encouraged law enforcement and the broader public to see sexual policing as humane, and even feminist.
Law enforcement authorities appropriated feminist language to defend their unfettered power to engage in discretionary sexual policing. For example, Deputy U.S. Marshal Albert Maresca insisted that law enforcement provides a “safety net” for “victims of exploitation.” This assumes, however, that police themselves are not a source of violence. In reality, sexual policing generates profound violence and exploitation in vulnerable women’s lives.
Abolishing Sexual Policing
Sexual policing is an inevitable and unaccountable site of state-sponsored sexual violence and police abuse. Prostitution law enforcement gives police the mandate—and the excuse—to harass, arrest, and assault sexually profiled women simply for being on city streets. Seen from the perspective of sex workers and sexually profiled people, police deliver violence and danger, not safety and protective services. As one anonymous Washington, D.C., resident said, “I feel less safe with the police than without them.” People may occasionally report helpful and positive encounters with individual officers, but decency is up to the officer’s own discretion—while violence is written into the legal repertoire of police tools to enforce urban order.
Analysis matters in policymaking. Where we analytically locate the source of harm we seek to remedy will have substantial consequences for the policy demands we take up. History teaches us that sexual policing means the criminalization of all people who are seen as a threat to white social norms. As long as police have the authority to enforce sexual order, they will have the power to restrict gender, sexual, and reproductive self-determination.
Throughout the 20th century, criminologists, journalists, sex worker activists and allies, and even some law enforcement authorities recognized that sexual policing hardens gender- and race-based inequalities and is wasteful, abusive, unconstitutional, and violent by design.
Today, leaders in the fight against loitering-prostitution laws are pushing for the full repeal of all prostitution-related laws. Allied policymakers must remain steady in targeting a key source of harm that endangers sexually profiled people: the police. During a time of rising attacks on gender, sexual, and reproductive autonomy, it is essential for feminists, LGBTQ+ activists, and police abolitionists to view the decriminalization of sex work as a central strategy to denying the state its power to control our lives and bodies.
Anne Gray Fischer is Assistant Professor of History at University of Texas-Dallas.
Photo credit: istock.com/etcityimage