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Beyond Amnesty: The Battle Over Sex Work Decriminalization

Forget Lena Dunham. Here is the real scoop on the future of sex work, at home and abroad.

Participants march with red umbrellas during the AIDS 2014 Mobilization March in Melbourne, Australia, on July 22, 2014. (Photo: PJ Starr)

Part of the Series

Unless you’ve been hiding under some kind of rock on the outskirts of social media for the past week, you’ve probably noticed the controversy over one of the most divisive and longstanding issues in the women’s movement – the buying and selling of sex.

Amnesty International, one of the world’s most established human rights organizations, voted this week to approve a policy recommending the decriminalization of sex work, which the organization defines as “the exchange of sexual services for some kind of remuneration.” The policy calls on governments to refrain from arresting and punishing both buyers and sellers of sex, as long as they are consenting adults.

The proposed policy brought a simmering debate to the public surface, pitting Hollywood celebrities against organized sex workers and feminists against other feminists. Academics, social workers, current and former sex workers, Gloria Steinem, and even evangelical Christians, who have made unlikely political bedfellows with feminists who oppose the sex trade, all took the digital soapbox. Certain corners of Twitter bubbled with the subtleties of a dizzyingly nuanced issue that has the ability to telescope from the bedroom to the world stage.

The debate got ugly a few times as opponents launched volleys in 140 characters or less:

Lena Dunham, one of several Hollywood actresses who signed a letter opposing Amnesty’s proposed policy, found herself in the crosshairs of the sex worker community and its supporters, including her own sibling and a Stoya, an adult film star. The legacy of Andrea Dworkin, the late feminist famous for her fervent opposition to the porn industry, was summoned in both praise and condemnation.

Hype aside, the Amnesty policy recognizes what sex worker and human rights advocates have been saying for years. Criminalizing the selling of sex increases social stigma against sex workers, increasing the likelihood that they will face discrimination, arrest and violence at the hands of police while being denied public benefits and due process under the law. Researchers have gathered plenty of evidence to support this, including the lived experiences of people in the United States and across the world.

In fact, advocates on both sides generally agree that people who sell sexual services, who are assumed to often be women, should not be criminalized, but they disagree on whether to punish those who buy sex, who are assumed to often be men.

Opponents of the Amnesty proposal launched an international media campaign as soon as it became public, declaring that the group was attempting to enshrine the purchasing of sex as a human right. Decriminalizing sex work, they argued, would give brothel owners, pimps and sex traffickers the green light to expand their businesses and increase the demand for young, exploited women.

Amnesty refuted the accusation, pointing out that its policy was focused on protecting sex workers, not the right to buy human beings for sex. The policy does not take a position on the legalization and state regulation of sex work and distinguishes between sex work and “human trafficking into prostitution,” which involves violence or coercion and is opposed by Amnesty along with all nonconsensual sex and the exploitation of children.

Criminalizing clients forces sex work underground, preventing workers from reporting violence to police.

On the surface, the initial outcry over the Amnesty proposal was over the group’s rejection of the so-called “Swedish” or “Nordic model,” which proponents say criminalizes only the people in the sex trade who buy or facilitate the sale of sex. The sex trade is inherently exploitive of women and encourages human trafficking, proponents argue, and the best way to ensure the human rights of those stuck in it is to provide them with “comprehensive services and exit strategies” while holding their “exploiters” accountable in the criminal legal system, according to a wildly circulated letter to Amnesty from the Coalition Against Trafficking in Women (CATW). Amnesty International, CATW claims, is turning its back on exploited women and establishing “amnesty for pimps.”

“What Amnesty is proposing is basically the legalization of exploitation,” said CATW executive director Taina Bien-Aimé, adding that that the sex industry exploits the “most marginalized populations in the world.”

Sex worker advocates broadly condemned the letter as stigmatizing, discriminatory and factually wrong. Sex work is not the same thing as human trafficking, and decriminalization of sex work by removing criminal prohibitions is not the same as legalizing abusive pimping. Such conflations have repeatedly lead to human rights abuses when anti-trafficking missions morphed into brutal police raids and stings, and CATW’s decision to recruit signatures from celebrities like Dunham and Meryl Streep was mocked across the internet as sex workers pointed out that policy makers should probably listen to people who actually work in the sex industry, not Hollywood stars.

Sex workers say the Nordic model, which is in place to some degree in Sweden, Northern Ireland, Norway and parts of Canada, makes life more difficult for sex workers and the marginalized people CATW is trying to protect in the first place.

Criminalizing clients forces sex work underground, preventing workers from reporting violence to police and working in groups for safety. When clients are nervous and afraid of the law, sex workers on the street must negotiate prices and safe sex within a matter of seconds. A 2014 report by the Norwegian government admits that street-based sex workers have “a weaker bargaining position and more safety concerns” now than before the country adopted the model. Undocumented migrants are still targeted for arrest and aggressively deported from countries using the model, even though they are considered members of a vulnerable population that proponents would “rescue” from the sex trade.

Plus, many sex workers simply don’t want the people they work with fined and locked up in jail. In Northern Ireland, 98 percent of sex workers surveyed by the government said they opposed a law in that country based on the Nordic model, and sex workers in France have rallied against legislation aimed at criminalizing their clients. Sex workers took to Twitter as the Amnesty vote in Dublin approached:

UNAIDS, the United Nation’s HIV program, agreed with the sex worker movement, citing evidence from across the world that criminalization schemes had made sex workers highly vulnerable to HIV. The Lancet, a leading medical journal, declared that decriminalization would have “the greatest effect on the course of HIV epidemics” across the world, averting 33 to 46 percent of new infections in the next decade. Over 10,000 people signed a petition in support of the policy, and on August 11, Amnesty’s International Council voted to adopt it, signaling a growing consensus in the global human rights community on the issue.

Amnesty’s policy may influence governments, but the vote did not change any laws, and “antis,” as the sex workers call them, have made it clear that this debate is far from over. After all, the debate was never just about the Nordic model in the first place.

US Sex Workers Sue California for the Right to Work

As Amnesty prepared to deliberate decriminalization in Dublin, Maxine Doogan was waiting for her day in court in San Francisco. Doogan’s organization, the Erotic Service Providers Legal, Educational and Research (ESPLER) Project, filed a federal lawsuit in March challenging California’s anti-prostitution statue on behalf of three current or former “erotic service providers” and one disabled client who would like to hire service providers for sessions in the privacy of his own home.

Doogan identifies as a prostitute and has worked as one for two decades, and she also has a background in labor organizing. She argues that people who sell sex cannot collectively advocate for better pay and working conditions when they are criminalized and denied equal protection under the law. Her organization supports decriminalization but opposes the sort of legalization schemes found in Nevada, where prostitution is only legal at licensed brothels run by shrewd managers. She said that criminalization, which is achieved in California under a state law banning prostitution and vague local ordinances, is not just a labor issue, but a women’s issue as well.

“Capitalism favors men, it favors people who already have capital,” Doogan said in an interview last week. “And our class of worker does not have a whole lot of capital. We have been oppressed for over 100 years under various criminalization schemes, and we have [been] deprived capital from our own labor.”

“Our position is that there is a liberty right to engage in a sexuality of our choice as long as its consensual.”

Oral arguments on a motion to dismiss the lawsuit filed by California’s attorney general were scheduled for the same Friday that Amnesty kicked off its international conference, but the judge canceled the hearing, opting instead to rely on court filings to decide on the motion at some point in the coming weeks. Doogan had hoped that the oral arguments would add some weight to the international conversation on decriminalization. Her attorney, H. Louis Sirkin, was just about to leave Cincinnati when he learned the hearing was canceled.

“Our position is that there is a liberty right to engage in a sexuality of our choice as long as its consensual,” Sirkin told Truthout.

Sirkin is not fazed by the fact that the judge will probably dismiss the lawsuit without a hearing. He has already won two blockbuster sex rights cases that began as long shots dismissed in lower courts before they were successfully appealed.

Sirkin gained his fame – or infamy, depending on how you feel about porn and the First Amendment – in 2001, when he successfully argued that the Supreme Court should strike down two overbroad provisions of the Child Pornography Prevention Act of 1996 that would have prohibited advertising and “any visual depiction, including any photograph, film, video, picture, or computer-generated image or picture” that “appears” to feature a minor engaged in sex, even if no minors were involved in the making of the material.

In 2008, Sirkin won another federal case that struck down a Texas ban on selling sex toys.

“Whatever problems Texas has right now cannot be blamed on sexual devices,” Sirkin said with a chuckle.

Sirkin said laws restricting sexual expression on moral grounds, like those that ban pornography and selling dildos in Texas, have slowly been chipped away by free speech challenges made under the First Amendment. Then came Lawrence v. Texas, the landmark 2003 ruling that struck down sodomy laws in 13 states and guaranteed adults the right to have consensual homosexual sex in private. In a 6-3 decision, the Supreme Court essentially ruled that due process guaranteed by the Fifth and 14th Amendments prevents the government from interfering with what we do in the bedroom.

“For years and years and years, there were laws against same-sex activity,” Sirkin said. “We’ve moved away from all that kind of stuff; in my opinion, we have grown up and accepted the reality of what’s going [on] in our country around us, and this is the next step.”

Sirkin, who said he was heartened by the recent Supreme Court ruling that lifted the last state bans on same-sex marriage, believes the ESPLER Project case could set a precedent in California and beyond. He argues that the plaintiffs, who are anonymous because prostitution remains illegal, are treated as second-class citizens. The government doesn’t drag other adults into court and embarrass them when they pick up the tab on a dinner date and get laid afterward, so why should his clients face public scrutiny simply because they decide to exchange money in the bedroom?

“I think as an individual you have the right to make that choice, if that’s an endeavor and an economic business you want to be in, then you have the right to do that,” Sirkin said. “It’s not different from how we make people feel better with physical therapy and massage and massage therapy.”

Prostitutes vs. Abolitionists

Both Sirkin and Doogan stress that they are talking about consenting, professional adults, not people who are forced or coerced into selling sex and exploited for their labor. Such activity would remain a crime under federal labor law, just as actual child porn remained illegal after the 2001 challenge to language in the Child Pornography Prevention Act.

Doogan said it was crucial that a client be included as one of the plaintiffs. That way, if the case is successful, California lawmakers will not be able to turn to the Nordic model in order to keep prostitution illegal, as Canadian lawmakers did after a similar case wound through that country’s courts. Criminalizing one side of a transaction is discriminatory, she said, and clients need to be able to go to the police without fear when sex workers are being abused.

“The clients are the ones who are first responders,” Doogan said. “When they find someone who doesn’t belong [in the sex trade] they are often the ones who help get them on to the right path.”

Sirkin said that, under the US Constitution, people should have the right to pay for sexual services, just as people pay to watch strippers and pornography at clubs or in private.

Taina Bien-Aimé from CATW, however, said Doogan and Sirkin’s logic is corrupt.

“Nobody has a right to purchase sex … that is ludicrous and is not based on fact or anything intelligent,” Bien-Aimé said.

“The Amnesty debate is tremendously oversimplified because abolitionists are motivated by emotions and ideology.”

Bien-Aimé said that she didn’t want to detract from Doogan’s agency, that “she wants to sell her body,” but it would be dangerous for our culture to accept prostitution as normal. The idea that Doogan’s job is like any other job, she said, “is straight out of a chapter written by Margaret Atwood.”

In Bien-Aimé’s world, Doogan represents the “1 percent” of people who sell sexual services because they choose to and are their own bosses when they do. The rest have “third-party exploiters” who prey on immigrants, women of color and people with histories of sexual abuse. Most clients, she said, are “not nice guys.”

“We are talking about a $90-billion-a-year industry, so there are a lot of people who have no choice but to be exploited,” Bien-Aimé said.

Bien-Aimé said sex trafficking is a “means to an ends” for the commercial sex industry, and decriminalizing sex work is like “laying out the red carpet for pimps who work with traffickers and are traffickers by definition.” Bien-Aimé and her allies see themselves as modern-day abolitionists fighting to end the bondage inherent to the commercial sex trade. They hope to “end demand” by allowing the police to arrest the men who buy and facilitate the sale of sex while helping prostitutes find a way out of the business.

Laura Agustín, an anthropologist and author who has extensively studied sex work and trafficking among migrant populations, said the term “sex trafficking” doesn’t really mean anything.

“All my work has been about undocumented migration in the context of only two jobs being widely available to women – working as live-in maid and selling sex,” Agustín said in an email. “I find End-Demand and abolitionist advocates insulting on the subject of women who make decisions on how to better themselves in poorer contexts and who may prefer selling sex to being a maid, and vice-versa.”

Agustín said abolitionists like Bien-Aimé make decriminalization sound as simple as “throwing an on-off switch,” but that has nothing to do with reality. Across the world, there are many different types of laws that hinder or directly prohibit different kinds of sex work, so the unraveling of criminalization is far more complicated than the current debate would suggest.

“The Amnesty debate is tremendously oversimplified because abolitionists are motivated by emotions and ideology,” Agustín said. “They deliberately generalize the many kinds of jobs in the sex industry, the variety of legal contexts around the world, and all migration policy.”

Indeed, to make her point, Bien-Aimé described a grueling hypothetical situation set in Germany, where prostitution has been legally regulated (but not decriminalized) for years, and some brothels have menus and flat-rate deals on sex and drinks. A young woman seeking higher wages in another country finds herself in a brothel, only to have her first sexual experience “on the gangbang floor” or being cut up by men with knives in some kind of kinky “blood sport” that is offered on the menu of an all-you-can-sex buffet.

“They’ve criminalized us for a hundred years, and we are still here. And we are going to still be here.”

Actual reports of flat-rate brothels in Berlin are pretty tame compared to Bien-Aimé’s hypothetical. Anti-sex trafficking groups raise millions of dollars with fundraising campaigns featuring alarming tales and images of young women in bondage that suggest that the sex trade is a hotbed of torture and “modern-day slavery.” As Truthout has reported, these groups often cherry-pick data on an underground economy that is difficult to research in the first place, and some high-profile tales of sex slavery and trafficking have recently been exposed as fabrications.

Doogan said that “the opposition” does not understand the sex industry or what workers want because they are too busy “profiting off the criminalization of our labor” and the “social disenfranchisement” caused by criminalization. Labor trafficking occurs in many industries, but no other industry has been targeted by anti-trafficking activists like the sex industry has. Anti-trafficking groups, she said, could be asking for the criminalization of Walmart shoppers for supporting sweatshops, or cracking down on wealthy families that force undocumented women to work as live-in maids for next to nothing.

“Historically, the anti-prostitution women employed domestic workers, and, historically, they forced women out of prostitution to work in their houses as domestic servants,” Doogan said.

This doesn’t mean that the global sex industry is free of coercion, abuse and violence – it most certainly is not – just that Doogan and Bien-Aimé have very different ideas of how to confront these challenges. Many people who sell sex do so for survival and have few other choices for employment. Therapists and medical professionals at rape crisis and women’s shelters report that marginalized people face serious dangers in the sex trade, and some even signed on in support of CATW’s petition to Amnesty. Others rallied behind the sex workers.

For its part, Amnesty International claims it reviewed all of the best available research and concluded that criminalization is more likely to reinforce the kind of discrimination that leads to human rights abuses. The policy is based on the principle of “harm reduction,” which accepts that people will probably buy and sell sex regardless of the law, so public policy should embrace practical strategies to reduce the negative consequences of sex work instead of tangling its participants up in the criminal legal system.

Harm reduction is not enough for Bien-Aimé, who advocates instead for “harm elimination,” and, by extension, the elimination of sex work in general. Anything else, she said, would send the wrong message about prostitution, a “harmful cultural practice” that turns bodies of women into commodities and stands firmly in the way of the path to gender equality.

“As long as women are purchasable, they are never going to be deemed equal in the corporate board room or in the legislative halls,” Bien-Aimé said. “If you are an object, you’re always an object, whether you’re wearing stilettos or have a suit on.”

The principle of harm reduction, however, is a clear alternative to relying on the police to keep sex workers safe, and it’s well known that police all over the world are quick to throw sex workers in jail. Doogan said abolitionists like Bien-Aimé should think twice before speaking on behalf of sex workers, who have never given them permission to do so.

“We are not just going to go away,” Doogan said, her voice churning the tired confidence of a woman who has fought an uphill battle for years but somehow knows that she is on the right side of history. “They’ve criminalized us for a hundred years … and we are still here. And we are going to still be here. We are just not ever going to go away.”

Correction: This article originally misidentifed the ESPLER Project’s attorney as Aaron Sirkin. His name is in fact H. Louis Sirkin.

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