Criminalizing Sex Workers Drives Rape and Gender-Based Police Violence

Mainstream feminism too often puts ‘police violence’ and ‘male violence against women’ into different conceptual categories — if, indeed, it considers police violence to be a topic of feminist concern at all. This is especially the case for the violence that is ‘normalised’ as part of policing: arrests, most obviously, but also violations such as intimate searches, and harassment such as stop-and-frisk. The result is that police violence gets left out of mainstream feminist anti-violence work. However, when we think of police violence not only as state violence but also (often) as male violence against women, the criminalisation of prostitution comes into focus in a new way: as a key driver of male violence against women.

The infrastructure of criminalisation saturates our political consciousness. It is the bobby on the beat, the jail on the Monopoly board, the crime-drama TV show (with its inevitable murdered prostitute), the car-chase footage on the news. In this saturation, such images are rendered mundane, sidelining questions of the legitimacy or purpose of these modes of control. As Angela Davis writes, the prison ‘is one of the most important features of our image environment,’ yet it functions ideologically as an abstract site into which undesirables are deposited, relieving us of the responsibility of thinking about the real issues afflicting those communities from which prisoners are drawn in such disproportionate numbers. This is the ideological work that the prison performs — it relieves us of the responsibility of seriously engaging with the problems of our society, especially those produced by racism and, increasingly, global capitalism.

Theorist Beth Richie uses the term prison nation to mean a ‘broad notion of using the arm of the law to control people, especially disadvantaged people and people from disadvantaged communities.’ Her term encompasses not only the physical infrastructure of prisons and jails, but also ‘surveillance, policing, detention, probation, harsh restrictions on child guardianship… and other strategies of isolation and disposal.’

Perhaps the key trick of the prison nation is ‘now you see it, now you don’t.’ Prison vanishes people; criminalisation renders those same people hyper-visible. The deeply racialised, anti-Black figure of the Pimp looms large as the perpetrator of ‘slavery’ while the prison system itself, one of the key material legacies of chattel slavery in the Americas, is filled with ever more Black inmates.

Through the intensifying militarisation of police departments, there is a direct link between the foreign wars at the frontiers of the contemporary American empire and the hyper-carceral state at home. As the New Yorker reports, since the 1990s,‘local governments have received approximately thirty-four billion dollars in grants from the Department of Homeland Security to buy their own military equipment… That brings the total [spent by American police departments on military equipment] to thirty-nine billion dollars more than the entire defense budget of Germany.’ The same trend is visible even in the histories of policing; early-twentieth-century American policing drew on the US Army’s experience imposing brutal colonial rule in the Philippines, just as UK policing explicitly drew on tactics developed by the British Army in subduing colonised populations.

Communities feel the police are an occupying army; the police feel themselves to be an occupying army, and the police respond to the people they encounter with the hostility that engenders. Some of the most powerful photography emerging from the ongoing fight for Black lives in the US speaks to the visual dimension of this: an iconic photograph taken in Baton Rouge, Louisiana, shows Ieshia Evans, a young Black woman in a summer dress, calmly facing down two oncoming police officers in full body-armour. Meanwhile, the overlapping military and prison industrial complexes drain hundreds of billions of dollars from the American public purse, outfitting the police who rushed Ieshia in futuristic ‘protective’ armour — alongside cuts to Social Security, healthcare, and education, and catastrophic divestment from Black communities.

The Crime of Sex Work

Prostitution arrests are racist. They have always been racist. In 1866, San Francisco police arrested 137 women, ‘virtually all Chinese;’ the police boasted that they had ‘expelled three hundred Chinese women.’ In the 1970s, the American Civil Liberties Union found that Black women were seven times more likely to be arrested for prostitution-related offences than white women. This disparity is no relic of the past: between 2012 and 2015, 85 per cent of people charged with ‘loitering for the purpose of prostitution’ in New York City were Black or Latinx — groups that only make up 54 per cent of the city’s population. Increases in prostitution enforcement mean increases in the arrests of women of colour. Between 2012 and 2016, the New York Police Department stepped up enforcement targeting massage parlours. As journalist Melissa Gira Grant details, during this period the arrests of Asian people in New York charged either with ‘unlicensed massage’ or prostitution went up by 2,700 per cent. Arrests on the street target Black and Latina women — who may not even be selling sex — simply for wearing ‘tight jeans’ or a crop top. The NYPD do not arrest white women in affluent areas of the city for wearing jeans.

Racial disparities play out, too, in terms of who is charged with what. As Andrea Ritchie writes, Black women are also far more likely than their white counterparts ‘to be charged with a more serious prostitution offence.’ A relatively high proportion of people incarcerated in the United States for human trafficking offences are Black women in their twenties who, at the time of their arrest, were selling sex. Such women are prosecuted as sex traffickers simply for sharing a workspace with someone else who is selling sex — and who turns out to be seventeen rather than eighteen. As attorney Kate Mogulescu asks, ‘is this the purpose of our federal human trafficking criminal law? To prosecute 20-to-24-year-old women of color involved in the commercial sex industry?’ Ritchie details the case of Gloria Lockett, a Black woman who went on to co-lead the sex workers’ rights organisation COYOTE and who was on one occasion arrested for ‘felony pimping’ for holding another woman’s money for her. Racism meant Lockett ‘was charged with felony pimping, while police charged the white women with simple misdemeanour prostitution.’

Through the prism of a fully criminalised legal model, the idea that a sex worker should be punished for selling sex is often underscored by a philosophy of deterrence a short, sharp shock to bring them in line with ‘decent values.’ (As one New York politician put it, ‘Sometimes you have to compel people to help themselves [they] might need the incentive of, “Listen, you know, you’ve got to stop this.”’) But at the level of material reality, criminalisation is not just a helping hand or a slap on the wrist. Often, charges like ‘breach of parole’ (continuing to sell sex after having been previously apprehended for it) generate much harsher penalties than the crime of prostitution itself, such as time in jail rather than a fine. Jail means that, if they have children, they will likely lose custody, and that upon release they are likely to be made homeless,will struggle to find ‘legitimate’ employment, and may be barred from some kinds of social safety net provisions, such as public housing. The criminal status of ‘prostitute’ is thus a trap.

Criminalisation is often a ‘revolving-door of arrest and prosecution.’ State-inflicted vulnerability is transfigured into what looks like ‘justified’ permanent disgrace. Sex workers with drug dependencies, trying to deal with the pain of homelessness and the loss of children, are seen as steering their own chaotic downward spiral, which makes it easier to vilify them as ‘deserving’ punitive sanctions. Prostitution policing also forcibly administers the mantle of chronic disgrace in more direct ways, such as posting mugshots and full names from prostitution arrests on social media. In one recent case, a Florida police department outed a sex worker who tried to trade sex with an undercover officer for a fast-food meal. Her legal name and photographs were reproduced widely in the press, as if this were an amusing rather than horrifying abuse of a vulnerable person.

Prior to 2011, a centuries-old law that criminalised ‘crimes against nature’ by solicitation (CANS) resulted in some sex workers in Louisiana being placed on a sex-offender registry for fifteen years to life. The sex workers placed on the registry were disproportionately Black or trans workers. To be placed on such a registry is in many ways to experience a profound social death: you are excluded from housing, from Social Security, from most jobs, and from your community. You can be barred from domestic violence shelters. You often cannot live or socialise unsupervised with children, even your own children. Your driver’s license — which you need to produce during a traffic stop, or to buy alcohol, or to deposit money in your local bank — reads ‘sex offender’ in huge orange letters. People on the registry are assumed to be perpetrators of extreme sexual violence and as such are often subject to vigilante violence from neighbours. In the aftermath of Hurricane Katrina, the nearby state of Florida barred registered sex offenders from public hurricane shelters, directing them to jails instead. Those prosecuted under federal law as traffickers — even those who have only ‘trafficked’ themselves, like the young Black women selling sex mentioned earlier in this chapter — are still placed on sex-offender registries.

Anti-prostitution policing also severely obstructs sex workers from carrying and using condoms, exposing them to health risks such as unwanted pregnancy and HIV. One sex worker in New York had police officers open her condoms and ‘drop them into the sewer, all the time, ten times a month.’ Another US sex worker says, ‘If I took a lot of condoms, they would arrest me. If I took a few or only one, I would run out and not be able to protect myself. How many times have I had unprotected sex because I was afraid of carrying condoms? Many times.’

Andrea Ritchie writes that, in New York in the early 2000s,

the practice was so pervasive that many believed there was a ‘three condom rule’ — anyone caught with three or more condoms would be charged with prostitution … In reality, there is no magic number. I have seen criminal complaints listing a single condom as evidence of intent to engage in prostitution-related offences.

In a direct echo of what happened to Gloria Lockett, one transgender Latina woman told lawmakers that when she and a friend were arrested on the street, ‘her friend was charged with loitering for the purposes of prostitution [a misdemeanour] and she was charged with promoting her friend [a felony] because she was carrying condoms.’ As technology and commercial sex collide, anti-prostitution policing, too, is increasingly present online. In America, the 2010s have seen a war of attrition against online platforms that host sex workers’ ads sites from Craigslist to BackPage to RentBoy and Eros have shuttered their ads sections in response to attempted prosecutions or have been brought down by actual arrests. RentBoy, for example, was suddenly pulled offline in the summer of 2015, when law enforcement raided its offices and indicted its chief executives. Losing these advertising platforms pushes sex workers onto the street, where their increased visibility makes them more vulnerable to arrest, or more likely to depend on managers. When San Francisco ad site and messaging board MyRedBook was taken down in the summer of 2014, local sex workers lost not only the ability to post free ads and screen clients online but a huge community resource including harm-reduction information such as ‘bad date’ lists, which warn workers of violent clients.

While we were writing this book, new laws which increase website providers’ vulnerability to prosecution over hosting sex work ads were passed in the US legislature. The Stop Enabling Sex Traffickers Act and Allow States and Victims to Fight Online Sex Trafficking Act (SESTA-FOSTA) censored a huge number of advertising platforms at once in spring 2018, rendering sex workers in the US and beyond more precarious, broke, and desperate almost overnight as their source of income vanished. SESTA-FOSTA increased the power of clients and would-be managers, as sex workers scrambled to find work in any way they could. One client wrote, ‘I definitely think this will end up being a win for hobbyists [habitual clients] … prices will drop because providers [sex workers] will not be able to pull in new customers and have to take whoever they can get. Specials [such as sex without a condom] will become more prevalent … They will have to act friendlier and not have the luxury of turning away clients any longer.’

Sex workers across the US reported that in the immediate aftermath of SESTA-FOSTA, they started getting a flood of texts, calls and other come-ons from wannabe-managers, looking to lure newly- desperate workers into potentially exploitative arrangements. As one sex worker said,‘There’s always something in the message alluding to these bills that have just passed. “Now you need me.” It’s really creepy, because that exact thing is what the people who passed the bill thought they were fighting, and they’ve brought it into my life.’ Another sex worker wrote, ‘Once Backpage was seized, I saw workers in my area who’d only recently clawed their way up from street-based work and homelessness into the lowest rung of indoor work … get flung back into what they’d just escaped. St. James Infirmary reported four times as many street-based workers as before in the Mission district. The sex worker community online started to hear about workers going back out on the street and missing their check-in calls — as of April 14, just based on anecdotal data passed between us, 13 workers have gone missing and two have been confirmed dead.’

It could seem paradoxical that these laws, which ostensibly aim to fight exploitation, instead make exploitation easier and more prevalent. But ultimately it is not a paradox: reducing sex workers’ ability to connect with clients always increases scarcity and makes workers more vulnerable. What is new about SESTA-FOSTA is the way in which, in an increasingly interconnected world, the effects of criminalisation in the US hit sex workers all over the world. Sex workers in the UK also had to scramble to move adverts onto different sites and servers, losing work in the meantime. The law thereby making these workers more precarious. Our community had to pool money and energy to help those who struggled as a result.

Criminalisation forces workers to compromise on some or all of their safety strategies in the hope of avoiding the police. At the same time, it signals to violent people that sex workers are in some sense ‘legitimate’ targets at the periphery of society. One sex worker in South Africa says that it used to be,

very good doing sex work because police officers were not on our case. I don’t know what triggered it, but they started being on our case. So we needed to move to darker and shadier places to avoid the police, who were abusing us, and that’s when we started being prey to our clients.

Simply being a police officer opens up opportunities to perpetrate harassment, abuse, extortion and rape. One young woman in Chicago reports, ‘I was solicited by a police officer who said that if I had sex with him he wouldn’t arrest me. So I did. Then afterwards he cuffed me and pressed charges anyway.’ Another says, ‘I was going to meet a new john, it turned out to be a sting set up by the cops. He got violent with me, handcuffed me and then raped me. He cleaned me up for the police station and I got sentenced to four months in jail for prostitution.’

Beside those illegal abuses of power, police having sex with prostitutes is formally endorsed by the state. Across the US, police officers routinely have sex during ‘prostitution stings,’ conveniently arresting the worker only after the officer has ejaculated. In Alaska, a proposed legislative measure to ban undercover cops from sexual contact with sex workers has met with resistance from the Anchorage Police Department, who have argued that abstaining from sexual contact makes it harder to prove prostitution is happening. Would any sex worker consent to sex if they knew it was a prelude to being arrested?